REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.74 OF 2010 (Arising out of Special Leave Petition (C) No. 1952 OF 2008)

JITENDRA KUMAR SINGH AND ANR. ….APPELLANT(S)

VERSUS

STATE OF U.P. AND ORS.     ……RESPONDENT(S)

WITH Civil Appeal No.75 /2010 (@ SLP (C) No. 1967 of 2008)

WITH Civil Appeal No.79 /2010 (@ SLP (C) No. 1959 of 2008)

WITH Civil Appeal No.80 /2010 (@ SLP (C) No. 7739 of 2008)

WITH Civil Appeal Nos.76-78 /2010 (@ SLP (C) Nos. 14078-14080 of 2008)

WITH Civil Appeal No.81 /2010 (@ SLP (C) No. 19100 of 2009)

J U D G M E N T

SURINDER SINGH NIJJAR, J.

Civil Appeal Nos…………………………… of 2010 (arising out of SLP (C)Nos.1952, 1959, 1967 & 7739 of 2008   

1. Leave granted.

2. These  Appeals  are  directed  against  the  common  Division  

Bench judgment of the High Court of Judicature at Allahabad  

dated  22.12.2006. By the aforesaid judgment, the High Court  

decided  number  of  Appeals  directed  against  the  common  

judgment  of  the  learned  Single  Judge  in  Writ  Petition  

No.25328 of  2001  and a number  of  other   connected writ  

petitions.  

3. The appellants had assailed the judgment dated  22.5.2002 of  

the  learned  Single  Judge  to  the  extent  that  the  Writ  Petition  

Nos.25328,  26847,  36411,  28836,  26177,  34039,  4630,  32763,  

27849,  27060,  29069  of  2001  and  47528  of  2002  had  been  

dismissed whereby the petitioners-appellants were seeking a writ in  

the nature of mandamus directing the respondents to send them for  

2

training to the post of Sub Inspectors. In some of the writ petitions,  

a  prayer  had also  been made  for  quashing  the  entire  select  list  

which was also declined by the learned Single Judge.  In Special  

Appeal  No.592  of  2006,  the  appellant  who  was  respondent  had  

assailed the aforesaid judgment of the learned Single Judge  only to  

the  extent  the  Single  Judge  had  issued  a  writ  in  the  nature  of  

mandamus to the respondent-appellants to fill up vacancies against  

2% Sports Quota from the aforesaid selection itself.    In Special  

Appeal No.1285 of 2002, the original petitioner had challenged the  

judgment  dated  01.10.2002  passed  by  the  learned  Single  Judge  

(R.K.Agarwal,  J.)  dismissing  the  writ  petition  no.47528  of  2002  

following the judgment dated 22.5.2002 of  Ashok Bhusan, J. in  

writ petition no.25328 of 2001 and other connected matters (supra).  

In  Special  Appeal  No.910  of  2005,  the  original  petitioner  had  

assailed  the  judgment  dated  19.7.2005  of  Sunil  Ambwani,  J.  

dismissing  writ  petition  no.29383  of  2001  again  following  the  

judgment dated 22.5.2002 of Ashok Bhusan,J (supra).

4.    The  dispute  between  the  petitioners  and  the  respondents  

revolves  around  the  issue  of  reservation  of  posts  for  Backward  

3

Classes, Scheduled Castes, Scheduled Tribes, Women Candidates  

and Sportspersons.  

5.   We  may  notice  here  the  relevant  facts  before  we  advert  to  

controversy  in detail.   

6.     An  advertisement  was  issued  on  4.5.1999  for  direct  

recruitment on the post of Sub Inspectors in Civil Police (hereinafter  

referred  to  as  “SICP”)  and   Platoon  Commanders  in   PAC  

(hereinafter referred to as “PC”). According to the respondents, the  

break down of  the posts was  1379 Posts for  SICP and 255 posts  

for  PC.  Out of  these posts, 2% posts were reserved for outstanding  

Sportspersons. The recruitments to these posts were to be made by  

a separate advertisement. Apart from above, 10% of the posts were  

reserved for women.

7. The  procedure  for  selection  included  a  Preliminary  Written  

Test consisting of 300 marks. Candidates were required to secure at  

least  50%  marks  for  being  declared  successful  and  entitled  to  

participate  in  further  test.  This  was  followed  by  a  Physical  Test  

consisting of 100 marks. Again the candidate had to secure at least  

50% or more marks. The marks obtained in the Preliminary Written  

Test and the Physical Test were, however, not to be included for  

4

determination  of  final  merit.  Candidates  who  qualified  in  the  

Preliminary  Written  Test  and the  Physical  Test  were  required  to  

appear in the Main Written Test consisting of 600  marks, having  

two  papers  i.e.  General  Hindi,  General  Knowledge  and  Mental  

Aptitude Test. Here again a candidate who secured 40%  or more  

marks could only be declared successful. The written test consisted  

of  two  papers-  (i)  Hindi  language   and  Essay  consisting  of  200  

marks  and  (ii)  General  Knowledge  and  Mental  Aptitude  Test  

consisting of 400 marks.  Thereafter, the candidate was to appear  

for interview which consisted of 75 marks. There  were, however, no  

qualifying marks for the interview.

8. It is common ground that in response to the advertisement,  

more than 50,000 candidates applied for the posts. The result for  

the  Preliminary  Written  Test  which  was  held  on  6.2.2000,  was  

declared  on  22.9.2000.  7325  candidates  were  found  successful.  

Physical  Test  was held  from 29.10.2000 to  6.11.2000 and 1454  

candidates were found successful. The Main Written Test was held  

on 29.4.2001 wherein 1178 candidates were declared  successful.  

The final result of the interview was declared on 6.7.2001, wherein  

1006 candidates were declared successful.  The number of persons  

5

who were selected in different categories finally and  have been sent  

for Training  is as under:-

1. General (Male) for the post of Sub Inspectors 608 2. General  (Female)  for  the  post  of  Sub  

Inspectors  (This included one dependent of  freedom fighter) Note: 163 OBC, 19 Scheduled Castes and 1  Scheduled Tribes candidates having secured  more than the  last  general  candidate,  were  selected against general vacancies.

15

3. OBC (male) for the post of Sub Inspectors 168 4. OBC (female) for the post of Sub Inspectors 9 5. SC (male) for the post of Sub Inspectors 25 6. SC (female) for the post of Sub Inspectors 1 7. ST (male) for the post of Sub Inspectors 3 8. General (male) Platoon Commander in PAC 125

9. All  the  petitioners-appellants  who  applied  pursuant  to  the  

aforesaid  advertisement  had  participated  in  the  entire  selection  

process.  However, the names did not figure in the merit list of the  

selected candidates.   

10. The selection was challenged in a number of writ petitions by  

candidates who  were not included in the select list.  According to  

the  High  Court,  the  selection  was  challenged  on  the  following  

grounds:-

1.The selection has been made by adopting pick and  

6

choose method.

2.More  than  600  posts  are  still  vacant  yet  the  petitioners have not been declared successful.

3.There was no guideline or criteria for interview.

4.The  number  of  candidates  appeared  for  main  examination and interview being less than the total  number  of  vacancies,  therefore,  the  petitioner- appellants could not have been unsuccessful.

5.Several candidates having inferior educational record  have been declared successful.

6.Certain  persons  having  Roll  Nos.0492198,  520570,  0492263,  760146,  480612,  492353,  7706166,  790658, 790519 and 790035 did not find place in the  result after main examination yet have been shown as  selected  finally  in  the  final  merit  list  which  shows  serious irregularities and bungling in the selection.

7.Keeping large number of vacancies unfilled although  successful  candidates  are  available  is  a  motive  for  extracting illegal demand.

11.  The writ petitions were opposed by the State Government by  

filing a detailed counter-affidavit in Writ Petition No.26177 of 2001.  

The aforesaid counter-affidavit was said to have been read on behalf  

of  the  State  in  all  the  cases.  It  was  explained  by  the  State  

7

Government  that  in  response  to  the  advertisement,  total  53780  

application forms were received. It was further explained that 1178  

candidates had qualified in the main written test who appeared in  

the interview which was held between  18.6.2001 to 1.7.2001. It  

was further explained that vide Government order dated 3.2.1999,  

2956 posts of SICP were sanctioned, out of which 50%   posts were  

to  be  filled  by  direct  recruit  and  50%   posts  by  promotion.  

Therefore, 1478 posts came to be filled in by direct recruit.  Since  

99 posts were filled under the Category of “Dying in Harness” Rules,  

only 1379 posts remained  to be filled. Separate  selection was to be  

held  on the 2% vacancies reserved for  Sportspersons through a  

separate  advertisement.  Therefore,  as  a  matter  of  fact,  actual  

recruitment was made i.e. only for  1350 posts of SICP and 255  

posts of PC. The break-up of the posts was as indicated above.   

12. Upon consideration of the entire matter,   Ashok Bhusan, J.  

delivered common judgment  dated 22.5.2002 in CMWP No.25328  

of 2001  (Narendra  Partap Singh vs. Director General of Police, UP  

and  others).  All   the  writ  petitions  were   disposed  of   with  the  

following observations:-  

8

“In view of  the  foregoing discussions  none of  the  contentions of the petitioner can  be accepted except   the  contention  regarding  2%  reservation  for  sports  men.  Relief  claimed  by  the  petitioner  cannot  be  granted except the  direction to  the  respondents to   recalculate the number of  posts of general category  candidates  by  applying  2%  reservation  for  sports  men horizontally and adding 2% posts of sports men  also while calculating the total number of vacancies  of general category candidates. If after applying 2%  reservation horizontally any post in general category  candidates quota remains vacant the same shall be  filled up by the general category candidates next in   merit.  It  is,  however,  made clear  that  by the said   exercise  the  selection  already  made  will  not  be  affected in any manner.

All  the writ  petitions are disposed of  with  the aforesaid   directions”

13. This  judgment  was   subsequently  followed  in  the  separate  

judgments delivered by R.K.Agarwal, J. and Sunil Ambwani, J. All  

the three judgments were challenged in appeals before the Division  

Bench, which have been decided by the common judgment dated  

22.12.2006.

14.   The  Division  Bench  noticed  the  submissions  made  by  the  

learned  counsel  for  the  parties  in  detail  and  formulated  seven  

issues which arose in the appeals. The issues were as under:-

“1. What  is  the  extent  of  selection  of  a  reserve category candidate against unreserved  

9

seats  and  in  what  circumstances  he  can  be  considered  against  unreserved  vacancies  besides  reserve  seats.  The  relevant  factors,  shades  and  nuisances  for  such  adjustment  also need to be identified, if any.

2. Whether  Section  3  (6)  of  Act  of  1994  would  apply  where  a  candidate  of  reserve  category though has availed relaxation meant  for reserve category candidates namely fee and  age but in all  other  respect,  in the selection  test,  has  completed  with  general  category  candidates and has secured more marks than  the last selected general category candidate. In  other words whether relaxation in age and fee  would  deprive  and  outsource  him  from  competing  against  an  unreserved  seat  in  an  open competition with general candidates.

3. Whether  selection  of  reserve  category  candidates  against  reserved  and  unreserved  constituting  more  than  50%  is  unconstitutional or otherwise contrary to law.

4. Whether  reservation of seats for women  is violative of Article 16(2) of the Constitution  of India.

5. Whether seats reserved for women can be  carried  forward   in  case  suitable  candidates  are  not  available  or  the  reservation  being  horizontal and applicable to all categories, the  unfilled vacancies are to be filled  by suitable  male candidates.

10

6. Whether  keeping  2%  sports  quota  separate  from  the  selection  in  question  is  illegal.

7. Whether  selection  in  question  is  otherwise  vitiated  on  account  of  any  alleged  irregularity or bungling.

15.     The  Division  Bench  noticed  the  historical  background in  

which  the  provisions  with  regard  to  reservation  came  to  be  

incorporated in the Constitution of India.  The Division Bench also  

noticed the entire  history with regard to the various government  

orders  making  reservation  for  different  categories.  The  Division  

Bench notices that the matter of reservation has been dealt in detail  

by this Court in numerous cases.  Therefore, the Division Bench  

has confined itself to the problem as, faced and countered, in the  

State  of  U.P;  particularly  with  reference  to  the  category  of  the  

candidates belonging to ‘O.B.Cs.’ The Division Bench also noticed  

the  statutory  provisions  contained  in  the  U.P.  Public  Services  

(Reservation for Scheduled Castes and Scheduled Tribes) Act, 1994  

(hereinafter  referred  to  as  “the   Act  of  1994”).  The  High  Court  

considered issues no.1, 2  and 3 together.   

11

16. The  Division  Bench  has  concluded  that  the  various  

Government orders and the Act of 1994 provide reservation in State  

services  with  the  intent  to  achieve  the  goal  of  adequate  

representation of Backward Classes of Citizens in service. It notices  

that reservation under Article 16(4) has to be made keeping in view  

the  provisions  contained  in  Article  14,  16(1)  and  335  of  the  

Constitution of India.  It is also held that there are various modes  

and  methods  of  providing  reservation.  The  extent  and  nature  of  

reservation is a matter for the  State to decide considering the facts  

and  requirements of each case. In this case the Legislature has  

empowered the State to extend concessions limited to fee and age to  

OBCs, besides keeping reservation of seats to the extent of 27%.  

The  prime  objective,  obviously,  is  to  provide  adequate  

representation  to  these  classes,  which  in  the  opinion  of  the  

Legislature are not adequately represented in the services under the  

State.   The  Division  Bench  also  concluded  that  the  State  

Government has not conducted any indepth study to find out as to  

whether adequate representation has been given to any particular  

Backward  Classes  as  a  result  of  successive  provisions  for  

reservation.  Therefore,  a  direction  has  been  given  to  the  State  

12

Government of U.P. to  undertake an indepth study to find out the  

representation of various Backward Citizens in Public service and to  

find out whether any Backward Class citizens have achieved the  

constitutional  goal  of  adequate  representation  in  service  or  not.  

Thereafter, the Government is to review the policy in the light of  

facts, figures and  information received pursuant to such study. The  

exercise is to be undertaken by the State Government within six  

months and a compliance report is to be submitted to the Court.   

17. With regard to the manner, mechanism and  inter-relationship  

of  various  concessions  and  reservations,  the  Division  Bench  

observed that it is permissible for the State  to provide concessions  

to achieve the goal under Article 16(4) without keeping the seats  

reserved for any backward class of citizens. When certain seats are  

reserved,  it  would  not  result  in  making  unreserved  seats  

compartmentalized for General Category candidates i.e. unreserved  

candidates.  There  is  no  reservation  for  General  Category  

Candidates.  It is also held that a reserved category candidate, in  

addition to the reserved seats, can always compete for unreserved  

seat.   The  Division  Bench  has  further  held  that  the  reserved  

category candidate can also compete against the unreserved seats  

13

under a criteria which is uniformly applicable to all the candidates.  

In case the selection criteria is lowered for the reserved category  

candidate,  then  such  difference  in  standard  or  criteria  would  

disentitle the reserved category candidate to compete in the general  

category.   After  analyzing  the  law  laid  down  by  this  Court  in  

numerous judgments, the Division Bench has concluded that the  

conflicting  claims  of  individuals  under  Article  16(1)  and  the  

preferential treatment given to a backward class under Article 16(4)  

of the Constitution has to be balanced, objectively.  The Division  

Bench then considered as to whether the concession or relaxation  

in the matter of fee and age would deprive a reserved candidate of  

his right to be considered against an unreserved seat. Can it be said  

that such a candidate is not a person who has competed with the  

general category in an open competition.  It is noticed that under  

GOs  (Government  Orders)  dated  11.04.1991,  19.12.1991  and  

16.04.1992 and the clarification dated 19th October, 1992, it was  

provided that a reserved category candidate cannot compete with  

the  open  category  candidate(s)  after  availing  preferences  which  

result in lowering of the prescribed standards.  Such a candidate  

would  only  be  considered  against  seat/post  for  the  reserved  

14

category.   However,  after  the  promulgation  of  the  1994  Act  and  

issuance of the Instructions dated 25th of March, 1994, the State  

Government has not treated relaxation in age and fee as relaxation  

in  the  standard  of  selection.  Therefore,  even  if  a  candidate  has  

availed concession in fee and or age limit, it cannot be treated to be  

a relaxation in standard of selection. Therefore, it  would not deny a  

reserved  category  candidate  selection  in  Open  Competition  with  

General Category candidates.   Such concessions can be granted by  

the State under Section 8(1) of the Act.  The Division Bench has  

also  held  that  a  relaxation  in  age  and  concession  in  fee  are  

provisions pertaining to eligibility of a candidate to find out as to  

whether he can appear in a competitive test or not and by itself do  

not provide any indicia of open competition.  The competition would  

start only at a stage when all the persons who fulfill all the requisite  

eligibility qualification, age etc. are short listed.  The candidates in  

the zone of consideration entering the list on the basis of aforesaid  

qualifications would thereafter participate in competition and open  

competition  would  commence  therefrom.   Therefore,  concession  

granted under Section 8 would not disentitle  a reserved category  

candidate of the benefit under Section 3 sub-Section (6).  

15

18. In view of the above legal position, it has been held that if a  

reserved category candidate has secured marks more than  the last  

General Category candidate, he is entitled to be selected against the  

unreserved seat without being adjusted against the reserved seat.  

According to the Division Bench, merely because 183 candidates,  

belonging to the reserved category,  have been successful  against  

unreserved  seats  would  not  result  in  reverse  discrimination,  as  

apprehended by the petitioners.  This is particularly so as selection  

of such reserved category candidate against the unreserved seats  

would not be material for the purpose of applying the principle of  

reservation being limited to a total of 50%.   

19. The  Division  Bench  has  also  held  that  the  reservation  in  

favour of women is constitutionally permissible and is valid.  On  

issue No.5 it has been held that in view of the GO dated 26.02.1999  

(para  4),  the  52  vacancies  of  general  category  kept  reserved  for  

women candidates have been illegally carried forward for the next  

selection  instead  of  filling  in  from  the  general  category  male  

candidates.  However, since the posts remained vacant, the same  

had  to  be  filled  from the  general  category  male  candidates  and  

could not be carried forward.  

16

20. Reservation in favour of  sportspersons quota (2%) has also  

been  upheld.  It  was  held  that  the  aforesaid  reservation  has  to  

operate  horizontally,  therefore,  the  29 vacancies  which remained  

unfilled  could  not  have  been carried  forward.   The  observations  

made by the Single Judge on this issue have been approved.  A  

direction has been issued as follows:-  

“We  direct  the  respondent-authorities  to  fill  in  the   unfilled  vacancies  reserved  for  women  candidates   and  sportsmen  from  suitable  candidates  of   respective  category  on  the  basis  of  merit  list  and  send them for training and provide all other benefits,   if  any  as  per  rules.   However,  we  may  add here,   since  the  respondents  did  not  hold  recruitment  for  sports persons in the present selection and we are   informed  that  a  separate  selection  was  held,  therefore,  we  provide  that  the  vacancies  remain   unfilled  from  the  separate  selection  held  for  sportsmen against 29 vacancies separated from the   impugned selection, only those remaining vacancies   shall be made available to the respective candidates   of this selection.”

21.   The  aforesaid  findings  of  the  Division  Bench  have  been  

challenged in these appeals by the unsuccessful candidates as well  

as the State of U.P.

22. We have heard learned counsel for the parties.

17

23. Mr. L.N. Rao, learned Sr. Counsel appearing on behalf of the  

appellants submitted that the cardinal issue raised in these appeals  

is  whether  the  reserved category  candidates  who  had  taken  the  

benefit  of  age  or   fee  relaxation,  are  entitled  to  be  counted  as  

general category candidates. According to the learned Sr.Counsel,  

the Division Bench has erred in law in concluding that relaxation in  

age  and  fee  cannot  be  treated  to  be  relaxation  in  standard  of  

selection  and  shall  not  deny  a  reserved  category  candidate's  

selection  in  Open  Competition  with  General  Category  candidate.  

According to learned Sr. Counsel, the benefit of reservation under  

Article 16(4) of the Constitution of India is a group right whereas  

under Article 16 (1) of the Constitution of India, it is an individual  

right. It is emphasized that reservation  under Article 16(4) of the  

Constitution of India will take into its fold  concessions.  Once a  

candidate falls within the reserved category, he/she can only exit  

the Group i.e. from the benefit of   Article 16(4) of the Constitution  

of India to  Article 16(1) of the Constitution of India on fulfillment of  

two circumstances, namely, (a) imposition of  a creamy layer and (b)  

merit selection. That is where there is a level playing field in respect  

of the selection process, without any benefit under Article 16(4) of  

18

the Constitution of India. According to the learned Sr. Counsel, a  

level playing field would be of candidates who have not availed of  

any concessions or relaxation. All things have to be equal for all the  

candidates.   

24. According  to  learned  Sr.  Counsel,  there  is  a  distinction  

between relaxation and concession which pertain to  a  particular  

selection process and mere support mechanism (such as  General  

Coaching) independent of a criteria for a particular selection.  

25. According to the learned Sr. Counsel, selection process would  

include all stages. There can be no distinction that relaxation in age  

and fee can be treated as provisions pertaining to eligibility i.e. to  

bring a candidate within the zone of consideration. According to the  

learned  Sr.  Counsel,  it  is  hair  splitting  to  divide    the  selection  

process into further parts. Each undermines the concept of “level  

playing  field”.  Learned  Sr.  Counsel  further  submitted  that  the  

Division Bench has misinterpreted Section 3 of the  Act of 1994. It  

has to be read as a whole. Section 8 is in nature of exception to  

Section 3 (6), because it creates a   non-level playing field.  

26. In order to emphasize that reservation under Article 16 (4) of  

the Constitution of India is a group right, and includes preferences,  

19

concessions  and  exemptions,  Mr.  L.N.  Rao  relied  on  certain  

observations of this Court made in the case of  Indra Sawhney  and  

others vs. Union  of India and others, 1992 Supp (3) Supreme  

Court Cases 217.  According to him, the fact that only age and fee  

relaxations  were  given   does  not   take  the  reserved  category  

candidates  out  of  the  group category.  He has also  relied on the  

judgment  rendered  in  the  case  of   Post  Graduate  Institute  of  

Medical  Education  &  Research,  Chandigarh  and  others  vs.  

K.L.Narsimhan and another,  1997 (6) SCC 283 in support of the  

submission that once a candidate takes advantage of relaxation in  

the  eligibility  criteria,  he/she  has  to  be  treated  as  a  reserved  

category candidate.

27. With regard to the interpretation to be placed on the Act of  

1994, Mr. L.N.Rao submitted that Section 3 preserves the definition  

of  the  group  throughout.  According  to  him,  Sections  3  (6)  and  

Section 8 are to be read together in the following way i.e. in Section  

3(6),  the  term  “gets  selected  on  the  basis  of  merit  in  an  open  

competition”  denotes  a  level  playing  field  in  Open  Competition  

permitting exit  from the group into the merit  category. Section 8  

lowers the level playing field “for any competitive examination” and  

20

clubs three categories together- (a) fees, (b) interview and (c ) age  

limit.  According  to  the  learned  Sr.  Counsel,  the  invocation  of  

Section 8 wholly excludes the operation of Section 3 (6) to which  

Section 8 is an exception. He further submitted that relaxation and  

concessions may be of various kinds. Each is a part of Article 16 (4)  

of  the  Constitution  of  India  and  could  have  egalitarian  

consequences. In support of the submissions, reliance is placed on  

observations of this Court made in  paragraph 743 in the case of  

Indra  Sawhney  (supra).   According  to  the  learned  Sr.  Counsel,  

there is a distinction between social  support mechanisms prior to  

an  examination,  (which  are  also  a  part  of  Article  16  (4)  of  the  

Constitution of India) and the relaxations/concessions which relate  

to the  selection process itself. According to the learned Sr. Counsel,  

supplemental and ancillary provisions to ensure full  availment of  

provisions  for  reservation  would  be  a  part  of  reservation  under  

Article 16 (4) of the Constitution of India. He submitted that the  

selection process has to be seen as a whole.  It cannot be split up  

into different parts.  Section 8 is an exception to Section 3(6). In  

view of the above, according to the learned Sr. Counsel, the Division  

Bench has erroneously held that in view of Section  8 of the Act of  

21

1994,  reserved category candidates can be permitted to compete  

with the General Category candidates.   Learned Sr.  Counsel  has  

also  submitted  that  the  learned  Single  Judge  has  wrongly  

distinguished the judgment in the case of   K.L.Narsimhan (supra)  

on the basis that it was over-ruled by a larger five  Judges Bench in  

the  case  of   Post  Graduate  Institute  of  Medical  Education  &  

Research,  Chandigarh  vs.  Faculty  Association  and  others,  

(1998) 4 SCC 1.   The aforesaid judgment was over-ruled only on  

one   particular  point  raised  in   the  review  application.   The  

aforesaid  judgment  had  decided  three  appeals  in  a  common  

judgment. Review was filed only in one. Therefore,  the judgment in  

other  cases  is  not  over-ruled.  It  has  in  fact  been  subsequently  

referred to in Dr.Preeti Srivastava and Anr. V. State of M.P. and  

Ors., 1999(7) SCC 120, Bharati Vidyapeeth and Ors v. State of  

Maharashtra and Anr., 2004 (11) SCC 755 and State of Madhya  

Pradesh and Ors. V. Gopal D.Tirpathi and Ors., 2003 (7) SCC 83.  

Therefore,  according to Mr. L.N.Rao, the reasoning given therein is  

still relevant. Learned Sr. Counsel then relied on the judgment in  

the case of  Union of India and another v. Satya Prakash and  

others, JT 2006 (4) SC 524,   in support of the submission that  

22

only a candidate who has been selected without taking advantage of  

any relaxation/concession can be  adjusted against a seat meant  

for  General  Category  Candidate.  Learned  Sr.  Counsel  then  

submitted  that  the  vacancies  which  are  reserved  for  Women  

candidates  remained  unfilled,  and therefore,  ought  to  have  been  

filled from the men candidates belonging to the General Category.  

Even  these  vacancies  have  been   illegally  carried  forward.  The  

reservation in favour of women is  referable to Article 15 (3) of the  

Constitution of India and not Article 16 (4) of the Constitution of  

India. Therefore, it is horizontal reservation in which carry forward  

rule  would  not  be  applicable.  Even  with  the  carry  forward  rule  

which  is  applicable  only  to  vertical  reservations,  50%  cap  as  

approved in  Indra  Sawhney case (supra) cannot be permitted to  

be breached.  

28.   In fact in the present case, the reserved category candidates  

have  occupied  one  third  of  the  posts  meant  for  the  General  

Category. If the argument of the State is accepted in  addition to the  

quota of 50% (with carry forward), another 183 out of 1014 (18%)  

would be added.  Learned Sr. Counsel  reiterated that the purpose  

of  reservation  is  not  to  distribute  largesse,  but  to  create  

23

empowerment   among  the  disadvantaged.  The  test  is,  therefore,  

“adequacy”,  not  mechanical  over-empowerment,  which  must  be  

constantly maintained. Learned Sr. Counsel also emphasized that  

the  provisions  contained  in  Article  16  (4)  (a)  and  (b)  of  the  

Constitution of India are all enabling provisions and subject to (a)  

creamy  layer,  (b)  50%  cap  (c  )  compelling  reasons  and  (d)  

proportionality. In the present case, the  State has failed to give any  

details with regard to adequacy of representation. Finally, learned  

Sr. Counsel submitted that reservation in favour of women is even  

otherwise violative of Article 16 (2) of the Constitution of India.

29. On  the  other  hand,  Mr.  Dwivedi,  learned  Senior  counsel  

appearing on behalf of the respondents submitted that in fact no  

cause of action has arisen in favour of the appellants. All of them  

are qualified candidates who did not make it to the final select list  

on the basis of comparative merit. He then submitted that in fact  

the selected candidates who are likely to be  affected, have not been  

made parties. It has also been submitted that in any case, no relief  

can be granted to the appellants, at this stage as all the posts had  

already  been  filled.  Therefore,  the  submissions  made  by  the  

appellants are merely an academic exercise.   According to him, the  

24

Division  Bench has  correctly  interpreted  Section  3  of  the  Act  of  

1994.   He further submits,  by the suggested interpretation,  the  

appellants seek to add the words from Section 8 to sub-section (6)  

of  Section  3.  There  is  no   relaxation   in  the  qualifications.  The  

concession is only in the matter of fee and the age which pertains  

only to eligibility of a candidate to apply for the post. The criteria for  

selection for  all  the  candidates  is  identical,  which  has  not  been  

lowered,  by  the  concessions/relaxations  in  fee  and  age.   Under  

Section 3(6), the  candidate even though belonging to a  reserved  

category is entitled to be treated as a General Category Candidate.  

According to Mr. Dwivedi, the Division Bench has correctly observed  

that taking advantage of fee concession or age relaxation would not  

be  a  bar  for  the  reserved  category  candidates  to  be  treated  as  

general  category  candidates.  They  can  be  taken  out  of  General  

Category only as an exception i.e. if their standard is lowered. On  

the other hand, if  by relaxation, the reserved category candidate  

gets no advantage, he cannot be compartmentalized. The judgment  

relied upon by the appellants in K.L.Narsimhan (supra) has  been  

over-ruled in the subsequent judgment of this Court in the case of  

Faculty Association (supra).  Once the judgment is over-ruled, it  

25

cannot be argued that it is only partly over-ruled. Learned Senior  

counsel also submitted that the particular sentence relied upon by  

learned Sr. Counsel appearing on behalf of the  appellants in the  

case of  K.L.Narsimhan  (supra) is a stray observation and cannot  

be treated as an authoritative pronouncement or a precedent.    In  

any event, according to him, in the case of K.L.Narsimhan  (supra),  

the issue of  relaxation in age or fee was not considered.  In the case  

of     Satya  Prakash  (supra),   it  has  been  clearly  held  that  

candidates who have been recommended without resorting to the  

relaxed  standard  shall  not  be  adjusted  against  the  vacancies  

reserved  for  Scheduled  Castes,  Scheduled  Tribes  and  Other  

Backward Classes. According to the learned Senior counsel, even  

Indra  Sawhney  case  (supra) only  lays  down  the  meaning  of  

“Reservation” in terms of Article 16 (4) of the Constitution of India.

30. SLP (C ) Nos.14078-80 of 2008 have been filed by the State of  

U.P. challenging the   common final judgment of the Division Bench  

dated 22.12.2006 and the  final order dated 18.12.2007 declining to  

modify or recall the earlier judgment dated 22.12.2006. In support  

of the appeals, Mr. Dinesh Dwivedi, learned Sr. Counsel submitted  

that the learned Single Judge of the High Court had taken notice of  

26

the fact that   total posts of  SICP were 1231 (male) + 148 (female).  

2% posts were reserved for sports persons. Therefore, 29 posts of  

SICP and 5 posts of PC were earmarked for Sports Quota. Since 608  

male candidates belonging to the General Category were selected,  

67 posts of General category were available for women. However,  

only 15 candidates  had been selected.  Therefore, 52 posts were  

filled  up  on  merit  from male  candidates  in  accordance  with  the  

Government Order dated 26.2.1999. Therefore,  it  was noticed by  

the  learned  Single  Judge  that  no  post  in  General  Category  was  

vacant.  Having come to the aforesaid conclusion, the learned Single  

Judge had wrongly issued the directions in the final paragraph of  

the  judgment  to  recalculate  the  number  of  posts  of  General  

Category  candidates  by  applying  2%  reservation  for  Sportsmen  

horizontally   and  adding  2%  posts  of  sportsmen  also  while  

calculating  the  total  number  of  vacancies  of  General  Category  

candidates.  This direction had been challenged by the State and  

the Director General  of Police in Special Appeal Nos.910 of 2005  

and 592 of 2006. In spite of the aforesaid categoric finding of the  

learned Single Judge, that there were no vacant posts, the Division  

Bench concluded that the vacancies which were left unfilled were  

27

carried  forward for  next  selection,  instead of   filling  in  from the  

General  Category  of  male  candidates.  In  fact  Government  Order  

dated 26.2.1999 was fully complied with. According to the learned  

Sr. Counsel, the direction issued by the Division Bench to fill up the  

unfilled vacancies reserved for women candidates and sportsmen  

from suitable candidates of respective categories has been issued  

without  taking into  account  that  all  the vacant  posts  have  been  

filled,  in accordance with the  Government Order.    The Division  

Bench has failed to appreciate that no unfilled posts reserved  for  

women and the Sportsmen quota have been carried forward.

31. Dr.  Rajeev  Dhawan,  learned  Sr.  Counsel  reiterated  the  

submissions  made  by  Mr.L.N.  Rao.  According  Dr.Dhawan  the  

judgment  in the case of    K.L.Narsimhan (supra) has only been  

partly over-ruled in one case. The aforesaid judgement had decided  

three appeals by a common judgement, therefore, the reasoning of  

the judgment is still intact and would be applicable to the facts and  

circumstances  of  the  present  case.  Since  the  reserved  category  

candidates have been given relaxation in the age and the fee, the  

same would fall within the group right of reservation under Article  

16 (4) of the Constitution of India. Learned Sr. Counsel reiterated  

28

that once a candidate takes advantage of reservation/concessions  

under Article 16 (4) of the Constitution of India,  he/she cannot be  

permitted to be appointed against the seat meant for the General  

Category. According to the learned Sr. counsel,  all parts of Section  

3 of the  Act of 1994 talk of group rights. There cannot be an exit  

from  reservation,  once   a  benefit  is  taken.  In  other  words,  a  

candidate covered under Article 16 (4) of the Constitution of India  

cannot  also be a candidate under Article 16 (1) of the Constitution  

of  India.

32. We  have  considered  the  submissions  made  by  the  learned  

counsel for the parties.  

33. The core issue in the writ petitions was with regard to filling  

up  the  General  Category  posts  by  candidates  belonging  to  the  

reserved category candidates on their obtaining more marks than  

the last candidate in the General Category. The submissions made  

by  the  learned  counsel  for  the  appellants  are  all  over-lapping.  

Reference  to  case law is  also  common.  In our  opinion,  it  is  not  

necessary  to  consider  the  larger  issues  raised  by  the  learned  

counsel  for  the  parties  with  regard  to  the  nature  and  extent  of  

reservation. These issues  have been dilated upon by this Court in  

29

numerous  judgments.  The  Division  Bench  in  the  impugned  

judgment has  traced  the  history of  reservation at  considerable  

length. It  has also distinguished between vertical and horizontal  

reservations.  It  has  also  correctly  concluded  that  in  case  of  

horizontal   reservation,  the  carry  forward   rule  would  not  be  

applicable. All these issues are no longer res integra, in view of the  

authoritative  judgment  rendered  in  the  case  of  Indra  Sawhney  

(supra).  It can also be no longer disputed that reservation under  

Article  16  (4)  of  the  Constitution  of  India  aims  at   group  

backwardness.  It  provides  for  group  right.  Article  16  (1)  of  the  

Constitution  of  India  guarantees  equality  of  opportunity  to  all  

citizens  in  matters  relating  to  employment.   However,  in  

implementing  the  reservation  policy,  the  State  has  to  strike  a  

balance  between  the  competing  claims  of  the  individual  under  

Article 16(1) and the reserved categories falling within Article 16(4).  

A Constitution Bench of this Court in the case of  Indra Sawhney  

case  (supra),  this  Court  reiterated  the  need  to  balance  the  

Fundamental Right of the individual under Article 16(1) against the  

interest and claim of the reserve category candidates under Article  

16(4) of the Constitution.   

30

“It needs no emphasis to say that the principal   aim  of  Article  14  and  16  is  equality  and  equality  of  opportunity  and that  Clause (4)  of   Article 16 is but a means of achieving the very  same objective.  Clause (4) is a special provision   – though not an exception to Clause (1).  Both  the provision have to be harmonized keeping in   mind the fact that both are but the restatements   of the principle of equality enshrined in Article   14.   The  provision  under  Article  16(4)  –  conceived in the interest of certain  sections of   society  –  should  be  balanced  against  the   guarantee of equality enshrined in Clause (1) of   Article  16  which  is  a  guarantee  held  out  to   every  citizen  and  to  the  entire  society.   If  is   relevant to point out that Dr. Ambedkar himself   contemplated  reservation  being “confined to  a  minority of seats” (see his speech in Constituent  Assembly,  set  out  in  para  28).   No.  other  member of the Constituent Assembly suggested  otherwise.  It is thus, clear that reservation of a  majority of seats were never envisaged by the   found Fathers.   Nor are  we  satisfied that  the   present context requires us to depart from that   concept.”   

34. In  PGI  MER vs.  Faculty  Association  (supra  in  para  32  the  

same principle was reiterated as under:-

“32.  Article  14,  15  and  16  including  Articles  16(4),  16(4-A)  must  be  applied  in  such  a  manner  so  that  the  balance  is  struck  in  the   matter of appointments by creating reasonable   opportunities for the reserved classes and also  for the other members of the community who do  not belong to reserved classes.  Such view has  been  indicated  in  the  Constitution  Bench  decisions  of  this  Court  in  Balaji  case,   

31

Devendasan case and Sabharwal case. Even in  Indra Sawhney case the same view has been  held  by  indicating  that  only  a  limited   reservation not exceeding 50% is permissible. It   is  to  be  appreciated  that  Article  15(4)  is  an   enabling  provision  like  Article  16(4)  and  the  reservation  under  either  provision  should  not  exceed legitimate limits.  In making reservations   for  the  backward  classes,  the  State  cannot  ignore the fundamental rights of the rest of the  citizens.   The  special  provision  under  Article   15(4 [sic 16(4)] must therefore strike a balance  between  several  relevant  considerations  and  proceed objectively.  In this connection reference  may be made to the decisions of this Court in   State of AP vs. USV Balram and A Rajendran v.  Union of India,  it  has been indicated in Indra  Sawhney case that  Clause (4) of  Article  16 is  not in the nature of an exception to Clauses (1)   and  (2)  of  Article  16  but  an  instance  of   classification  permitted  by Clause  (1).   It  has  also  been  indicated  in  the  said  decision  that   Clause (4) of Article 16 does not cover the entire   field covered by Clauses (1)  and (2)  of  Article   16.  In Indra Sawhney case this Court has also   indicated that in the interests of the Backward   clauses of citizens, the State cannot reserve all   the  appointments  under  the  State  or  even  a  majority  of  them.   The doctrine  of  equality  of   opportunity in Clause (1) of Article 16 is to be  reconciled in favour of backward clauses under  Clause (4) of Article 16 in such a manner that   the latter while serving the cause of backward  classes shall  not unreasonably encroach upon  the field of equality.”

35. These  observations  make  it  abundantly  clear  that  the  

reservations  should  not  be  so  excessive  as  to  render  the  

32

Fundamental  Right  under  Article  16(1)  of  the  Constitution  

meaningless.  In  Indra Sawhney (supra), this Court has observed  

as under:-

“In  our  opinion,  however,  the  result  of   application  of  carry-forward  rule,  in  whatever   manner it is operated, shall not result in breach  of 50%  rule.”

36.  Therefore, utmost care has to be taken that the 50% maximum  

limit placed on reservation in any particular year by this Court in  

Indra Sawhney case (supra) must be maintained. It must further  

be  ensured  that  in  making  reservations  for  the  members  of  the  

Scheduled Castes  and Scheduled Tribes,  the maintenance  of  the  

efficiency of administration is not impaired.   

37. It  is  in  this  context,  we  have  to  examine  the  issue  as  to  

whether the relaxation in fee and upper age limit of five years in the  

category  of  OBC  candidates  would  fall  within  the  definition  of  

“reservation” to exclude the candidates from open competition on  

the seats meant for the General Category Candidates. Taking  note  

of  the  submissions,  the  Division  Bench  has  concluded  by  

considering questions 1, 2 and 3 that concession in respect of age,  

fee etc. are provisions pertaining to eligibility of a candidate to find  

33

out as to whether he can appear in the competitive test or not and  

by itself do not provide any indicia  of open competition. According  

to the Division Bench, the competition would start only at the stage  

when all the persons who fulfill the requisite eligibility conditions,  

namely, qualification, age etc. are short-listed. We are of the opinion  

that the conclusion reached  by the Division Bench on the issue of  

concessions and relaxations cannot be  said to be  erroneous.  

38. The  selection  procedure  provided   the  minimum  age  for  

recruitment as 21 years and the maximum age of 25 years on the  

cut off date. Relaxation of age for various categories of candidates in  

accordance with the Government Orders issued from time to time  

was also admissible. This included five years’ relaxation in age to  

Scheduled Caste, Scheduled Tribes, Other Backward Classes and  

dependents  of  Freedom  Fighters.   Relaxation  of  age  was  also  

provided in case of  Ex-servicemen. The period of service rendered  

in Army would be reduced for computing the age of the Ex-Army  

personnel. After  deducting the period of service they had rendered  

in  the  Army,  they  would be deemed  eligible.  These  were  mere  

eligibility  conditions  for  being  permitted  to  participate  in  the  

selection process.    Thereafter, the candidates had to appear in a  

34

Preliminary Written Test.  This consisted of 300 maximum marks  

and the candidates were required to  secure 50% or more marks to  

participate  in  the  further  selection  process.  Thereafter,  the  

candidates had to undergo physical test consisting of 100 marks.  

Again a  candidate  was required to  secure  at  least  50% or  more  

marks. It is not disputed before us that the standard of selection in  

the Preliminary Written Test and the Physical Test was common to  

all the candidates.  In other words, the standard was not lowered in  

case  of  the  candidates  belonging  to  the  reserved category.   The  

Preliminary Written Test and the Physical Test were in the nature of  

qualifying examinations to appear in the Main Written Test.  The  

marks obtained in  the  Preliminary  Written  Examination and the  

Physical Test were not to be included for determination   of final  

merits.  It  was  only  candidates  who  qualified  in  the  preliminary  

written test and the physical test that became eligible to appear in  

the  main written test  which consisted  of  600 marks.  As noticed  

earlier, this had two papers- General Hindi, General Knowledge and  

Mental   Aptitude  Test.  A  candidate  who  secured  40% or  above  

would be declared successful in the written test.  Thereafter, the  

candidates were to appear for interview of 75 marks. The final merit  

35

list would be prepared on the basis of merit secured in the main  

written test and the interview. Candidates appearing  in the merit  

list, so prepared, would be declared selected. It is common ground  

that  more  than  50000  candidates  appeared  in  the  preliminary  

written  test.  Upon  declaration  of  the  result  on  22.9.2000,  only  

3,325 candidates were found successful.  Thereafter,  the physical  

test which was conducted from 29.10.2000 to 6.11.2000 reduced  

the successful candidates to 1454. It was these 1454 candidates  

who  sat  in  the  main  written  test  held  on  29.4.2001.  Upon  

declaration  of  result, 1178  candidates  were  declared  successful.

The  candidates  who  were  successful  in  the  written  test  were  

subjected to an interview between 18.6.2001 to 1.7.2001. The final  

result  published  on  6.7.2001  declared  only  1006  candidates  

successful.

39. In view of the aforesaid facts, we are of the considered opinion  

that  the  submissions  of  the  appellants  that  relaxation  in  fee  

or  age  would  deprive  the  candidates  belonging  to  the  reserved  

category of an opportunity to compete against the General Category  

Candidates is without any  foundation. It is to be noticed that the  

reserved category candidates have not been given any advantage in  

the  selection process.  All  the candidates had to  appear  in the  

same written test and face the same interview. It is therefore quite  

apparent  that the concession in fee and age relaxation only enabled  

36

certain candidates belonging to the reserved category to  fall within  

the zone of  consideration.  The concession in age  did  not  in any  

manner  tilt  the  balance  in  favour  of  the  reserved  category  

candidates,  in  the  preparation  of  final  merit/select  list.  It  is  

permissible for the State in view of  Articles 14, 15, 16 and 38 of the  

Constitution of India to make suitable provisions in law to eradicate  

the  disadvantages  of   candidates  belonging  to  socially  and  

educationally backward classes. Reservations are a mode to achieve  

the equality of opportunity guaranteed under Article 16 (1) of the  

Constitution  of  India.  Concessions  and relaxations  in  fee  or  age  

provided  to  the  reserved  category  candidates  to  enable  them  to  

compete  and  seek  benefit  of  reservation,  is  merely  an  aid  to  

reservation. The concessions and relaxations place the candidates  

at par with General Category candidates. It is only thereafter the  

merit  of  the  candidates  is  to  be determined without  any further  

concessions in favour of the reserved category candidates.  It  has  

been recognized by this Court in the case of Indra Sawhney (supra)  that  larger  concept  of  reservation would  include   incidental  and  

ancillary  provisions   with  a  view to  make the  main provision  of  

reservation effective. In the case of  Indra Sawhney (supra), it has  been observed as under:-

“743. The question then arises whether clause (4)   of  Article  16  is   exhaustive  of  the  topic  of   reservations in favour of backward classes. Before  we answer this question, it is well to examine the  meaning  and  content  of  the  expression  “reservation”.  Its  meaning has to be ascertained  having  regard  to  the  context  in  which  it  occurs.   

37

The  relevant  words  are  “any  provision  for  the  reservation  of  appointments  or  posts”.  The  question  is  whether  the  said  words contemplate   only  one  form  of  provision  namely  reservation   simplicitor,  or  do  they  take  in  other  forms  of   special  provisions  like  preferences,  concessions  and exemptions. In our opinion, reservation is the  highest form of special provision, while preference,   concession  and  exemption  are  lesser  forms. The  constitutional scheme and context of Article 16 (4)   induces us to take the view that larger concept of   reservations  takes  within  its  sweep  all   supplemental  and  ancillary  provisions  and  relaxations,  consistent  no  doubt  with  the  requirement  of  maintenance  of  efficiency  of   administration—the admonition of Article 335. The  several  concessions,  exemptions  and  other  measures  issued by the  Railway  Administration   and noticed in  Karamchari Sangh are instances  of  supplementary,  incidental  and  ancillary  provisions made  with  a  view to  make  the  main   provision  of  reservation  effective  i.e.,  to  ensure  that the members of the reserved  class fully avail   of the provision for reservation in their favour.….”

40.      In our opinion, these observations are a complete answer to  

the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on  

behalf of the petitioners.   

41. We  are  further  of  the  considered  opinion  that  the  reliance  

placed by Mr.Rao and Dr.Dhawan on the case of  K.L.Narsimhan  

(supra)   is  misplaced.  Learned  Sr.  Counsel  had  relied  on  the  

following observations:-

38

“5......Only  one  who  does  get  admission  or  appointment  by  virtue  of  relaxation  of   eligibility  criteria  should  be  treated  as  reserved candidate.”

41.   The aforesaid lines cannot be read divorced from the entire  

paragraph which is as under:-

“5.It  was  decided  that  no  relaxation  in  respect of qualifications or experience would   be  recommended by Scrutiny Committee for  any of the  applicants including candidates   belonging to Dalits and Tribes. In furtherance  thereof, the faculty posts would be reserved  without mentioning the specialty; if the Dalit   and  Tribe  candidates  were  available  and  found  suitable,  they  would  be  treated  as   reserved  candidates.  If  no  Dalit  and  Tribe  candidate  was  found  available,  the  post  would  be  filled  from  general  candidates;   otherwise the reserved post would be carried  forward to the next year/advertisement. It is  settled law that if a Dalit or Tribe candidate   gets  selected  for  admission  to  a  course  or  appointment to a post on the basis of merit   as  general  candidate,  he  should  not  be  treated as reserved candidate. Only one who  does get admission or appointment by virtue   of  relaxation  of  eligibility  criteria  should be  treated as reserved candidate.”

42. These observations make it  clear that if  a reserved category  

candidate gets selected on the basis of merit, he cannot be treated  

as  a  reserved  candidate.  In  the  present  case,  the  concessions  

39

availed of by the reserved category candidates in age relaxation and  

fee concession had no  relevance to the determination of the inter se  

merit on the basis of the final written test and interview. The ratio  

of  the  aforesaid  judgment  in  fact  permits  reserved  category  

candidates to be included in the General Category Candidates on  

the basis of merit.

43. Even otherwise, merely quoting the isolated observations in a  

judgment cannot be treated as a precedent  de hors the facts and  

circumstances  in  which  the  aforesaid  observation  was  made.  

Considering  a similar proposition in the case of Union of India &  

Ors. vs. Dhanwanti Devi and others, 1996(6) SCC 44, this Court  

observed as follows:-  

"9.........  It  is  not  everything  said  by  a  Judge  while  giving  judgment  that  constitutes  a  precedent. The only thing in a Judge's decision  binding a party is the principle upon which the   case  is  decided  and  for  this  reason  it  is   important  to  analyse  a  decision  and  isolate   from it the ratio decidendi. A decision is only an  authority for what it actually decides. What is  of the essence in a decision is its ratio and not  every  observation  found  therein  nor  what   logically follows from the various observations  made in the  judgment.  It  would,  therefore, be  not  profitable  to  extract  a  sentence  here  and  there  from the  judgment  and to build upon it   because the essence of the decision is its ratio   

40

and not every observation  found therein.  It  is  only  the  principle  laid  down  in  the  judgment  that  is  binding  law  under  Article  141  of  the   Constitution."

44.  In the case of State of Orissa & Ors. vs. Md. Illiyas reported  

in  2006(1)  SCC 275, the  Supreme Court  reiterates  the  law,  as  

follows:-

"12.............  Reliance  on  the  decision  without   looking into the factual background of the case  before it, is clearly impermissible. A decision is  a  precedent on  its  own  facts.  Each  case  presents its  own features. It  is not everything   said  by  a  Judge  while  giving  judgment  that   constitutes  a  precedent.  A  decision  is  an  authority for what it actually decides. What is  of the essence in a decision is its ratio and not  every  observation  found  therein  nor  what   logically  flows  from  the  various  observations  made in the judgment.  The enunciation of the   reason or principle on which a question before a  court has been decided is alone binding as a  precedent. A case is a  precedent and binding for what it   explicitly decides and no more. The words used  by Judges in their judgments are not to be read  as if they are words in an Act of Parliament."

45. We may now examine the ratio in Narasimhan case (supra)  

keeping  in  view  the  aforesaid  principles.  On  16.11.1990  an  

advertisement was issued by  Post Graduate Institute of Medical  

Education and Research (hereinafter referred to as ‘PGI’) relating to  

41

recruitment to the post of Assistant Professor; out of 12 posts, 8  

was reserved for  Scheduled Caste and 4 posts  were reserved for  

Scheduled Tribes.  Since all the available posts were sought to be  

filled on the basis of reservation, the same were challenged in two  

writ petitions in the Punjab and Haryana High Court, Chandigarh.  

Both the writ petitions were allowed by the learned Single Judge.  It  

was held that the post of Assistant Professor in various disciplines  

is  a  single  post  cadre;  reservation  for  Scheduled  Caste  and  

Scheduled Tribes would amount to 100% reservation; accordingly,  

it is unconstitutional.  The said writ petition pertained to admission  

to Doctoral courses and Ph.D. programme.  This was also allowed  

by the learned Single Judge on the ground that admission to the  

aforesaid courses on the basis of reservation, undermines efficiency  

and  is  detrimental  to  excellence,  rendering  it  unconstitutional.  

Appeals against the judgements of the learned Single Judge were  

dismissed by the High Court.  Therefore, three appeals had been  

filed in this Court.  Two issues involved therein were (a)  whether  

reservation in appointment to the post of Assistant Professors in  

various disciplines in the PGI is violative of Article 14 and 16(1) of  

the Constitution of India; and (b) whether there could be reservation  

42

in admission to the Doctoral  courses and Ph.D. programmes.  A  

number of posts of Assistant Professor in diverse disciplines had  

been advertised.  It was not in dispute that the post of Assistant  

Professor in each Department was a single post cadre, but carried  

the same scale of pay and grade in all disciplines.  It was also not  

disputed  that  the  posts  in  different  specialties/super-specialties  

prescribed distinct and different qualifications.  The posts were also  

not transferable  from one specialty  to another,  however,  the PGI  

had clubbed all the posts of Assistant Professor for the purpose of  

reservation in view of the fact that they are in the same pay scale  

and have same designation.  The High Court had allowed the writ  

petition  by  relying  on  judgement  of  this  Court  in  Chakradhar  

Paswan (Dr.) vs. State of Bihar (1998) 2 SCC 214.  The ratio in  

the  aforesaid  judgement  was  distinguished  on  the  basis  of  the  

judgement in Union of India vs. Madhav, (1997)2 SCC 332.  The  

aforesaid judgement was reviewed by a larger Bench of five Judges  

of this Court in the case of  Post Graduate Institute of Medical  

Education  and Research,  Chandigarh  vs.  Faculty  Association  

and others (1998) 4 SCC 1.  On behalf of the review petitioners it  

was contended that judgement in Narasimhan case (supra) cannot  

43

be supported as in Madhav case (supra) the ratio in the decision of  

Arati Ray Chaudhary vs. Union of India 1974 (1) SCC 87 was  

wrongly appreciated and the ratio was wrongly stated.  On the other  

hand, it  was submitted by the learned Solicitor General that the  

judgement in Madav case (supra) indicated the correct principle by  

giving very cogent reasons. Therefore, no interference is called for  

against the decision in Madhav case (supra) and the other decisions  

rendered by following the decision.  Upon consideration of the rival  

submissions, it was observed as follows:-

“29. In Madhav case in support of the view that   even  in  respect  of  single  post  cadre  reservation   can be made for the backward classes by rotation   of roster, the Constitution Bench decision in Arati   Ray Choudhury case has been relied on.  We have  already  indicated  that  in  Arati  case  the  Constitution Bench did not lay down that in single  post cadre, reservation is possible with the aid of  roster point.   The Court in Arati  case considered  the  applicability  of  roster  point  in the  context  of   plurality of posts and in that context the rotation of   roster was upheld by the Constitution Bench.  The  Constitution Bench in Arati case had made it quite   clear  by  relying  on  the  earlier  decisions  of  the   Constitution Bench in Balaji case and Devadasan  case  that  100% reservation  was  not  permissible   and in no case reservation beyond 50% could be  made.   Even the  circular  on the  basis  of  which  appointment was  made in Arati  Ray Choudhury  case  was  amended  in  accordance  with  the   decision in Devadasan case.  Therefore, the very  

44

premise that the Constitution Bench in Arati case  has upheld reservation in a single post cadre is   erroneous  and  such  erroneous  assumption  in  Madhav case has been on account of misreading  of the ratio in Arati Ray Choudhury case.  It may   be  indicated  that  the  latter  decision  of  the   Constitution  Bench  in  R.K.  Sabharwal  case  has  also proceeded on the footing that reservation in  roster can operate provided in the cadre there is   plurality  of  post.   It  has  also  been  indicated  in  Sabharwal  decision  that  the  post  in  a  cadre  is  different from vacancies.   

46.    From the above it becomes evident that the very premise on  

the basis of which Madhav case was decided has been held to be  

erroneous.  Thereafter it  is further observed in paragraph 30 that  

“it also appears that the decision in Indra Sawhney case has also not  

been properly appreciated in Madhav decision.”   The conclusion of  

the judgement is given in paragraph 37 which is as under:-

“37. We, therefore, approve the view taken in  Chakradhar  Case  that  there  cannot  be  any  reservation  in a single  post cadre  and we  do  not  approve  the  reasonings in  Madhav Case,   Brij  Lal  Thakur case  and  Bageshwari  Prasad case upholding reservation in  a single  post  cadre  either  directly  or  by  device  of   rotation  of  roster  point.  Accordingly,  the   impugned  decision  in  the  case  of  Post  Graduate Institute of Medical Education &  Research, Chandigarh  is, therefore, allowed  and  the  judgment  dated  2.5.1997  passed  in  Civil Appeal No.3175 of 1997 is set aside.”

45

47. Since the judgment and reasoning in Narasimhan case (supra)  

were based on the reasoning in Madhav case (supra), we are unable  

to accept the submissions of the learned counsel for the appellants  

that the reasoning in the aforesaid judgement is still intact, merely  

because  review  was  filed  only  in  one  appeal  out  of  three.   The  

judgment in Narasimhan case (supra) having been set aside, we are  

unable to accept the submissions of the learned Senior counsel that  

the reasoning would still be binding as a precedent.   

48. Mere reference to the  judgement in the cases of  Dr.  Preeti  

Srivastava; Bharati Vidyapeet; and Gopal D. Tirthani and others  

(supra)  would  not  re-validate  the  reasoning  and  ratio  in  

Narasimhan case (supra) which has been specifically set aside by  

the  larger  Bench  in  Faculty  Association  case  (supra).   We  are,  

therefore,  of  the  opinion  that  the  reliance  placed  upon  the  

observations in Narasimhan case (supra) is wholly misconceived.   

49. In any event the entire issue in the present appeals need not  

be decided on the general principles of  law laid down in various  

judgments as noticed above.  In these matters, we are concerned  

with  the  interpretation  of  the  1994  Act,  the  instructions  dated  

46

25.03.1994 and the GO dated 26.2.1999.  The controversy herein  

centres around the limited issue as to whether an OBC who has  

applied exercising his option as a reserved category candidate, thus,  

becoming eligible to be considered against a reserved vacancy, can  

also be considered against an unreserved vacancy if he/she secures  

more marks than the last candidate in the general category.   

50. The  State  Legislature  enacted  the  UP  Public  Service  

(Reservation for Scheduled Castes and Scheduled Tribes) Act, 1993  

(hereinafter referred to as the ‘Act of 1993’). It was soon replaced by  

the  UP  Public  Services  (Reservation  for  Scheduled  Castes,  

Scheduled Tribes and  Other Backward Classes) Ordinance, 1994.  

This  was  to  provide  a  comprehensive  enactment  for  Scheduled  

Castes, Scheduled Tribes and OBCs. The Ordinance was replaced  

by  the   Act  of  1994  which  came  into  force   w.e.f.  11.12.1993.  

Section  2 (c ) of this Act defines public service and posts as the  

service  and post  in  connection with the affairs  of  the  State  and  

includes services and posts in local authority, cooperative societies,  

statutory  bodies,  government  companies,  educational  institutions  

owned and controlled by the State Government. It also includes all  

posts in respect of which reservation was applicable by Government  

47

Orders on the commencement of the Act. Section 3 of the Act of  

1994 makes provisions with regard to the reservation in favour of  

Scheduled Castes, Scheduled Tribes and Other Backward Classes.  

Section 3 of the Act of 1994 provides as under:-

“3.Reservation in favour of Scheduled Castes, Scheduled  Tribes  and  Other  Backward  Classes-  (1)  In  Public  Services and Posts, there shall be reserved at the stage of  direct recruitment, the following percentage of vacancies  to which recruitments are to be made in accordance with  the roster referred to in Sub-section (5) in favour of the  persons belonging to Scheduled Castes, Scheduled Tribes  and Other Backward Classes of citizens.

(a) in the case of Scheduled Castes Twenty-one percent;

(b) in the case of Scheduled Tribes Two per cent;

(c) in the case of  other backward Twenty Seven percent;

    Classes of citizens

Provided that the reservation under Clause (c ) shall not  

apply  to  the  category  of  other  backward  classes  of  

citizens specified in Schedule II.

(2  )If,  even in  respect  of  any  year  of  recruitment,  any  

vacancy reserved for any category of persons under Sub-

section (1) remains unfilled, special recruitment shall be  

made for such number of times, not exceeding three, as  

48

may be considered necessary to fill  such vacancy from  

amongst the persons belonging to that category.

(3) If, in the third such recruitment, referred to in Sub-

section  (2),  suitable  candidates  belonging  to  the  

Scheduled  Tribes  are  not  available  to  fill  the  vacancy  

reserved for them, such vacancy shall be filled by persons  

belonging to the Scheduled Castes.

(4)Where, due to non-availability  of suitable candidates  

any  of  the  vacancies  reserved  under  Sub-section  (1)  

remains unfilled even after special recruitment referred to  

in Sub-section (2), it may be carried over to the next year  

commencing from first of July, in which recruitment is to  

be made, subject to the condition that in that year total  

reservation  of   vacancies  for  all  categories  of  persons  

mentioned in Sub-section (1)  shall  not exceed fifty one  

per cent of the total vacancies.

(5)The  State  Government  shall,  for  applying  the  

reservation  under  Sub-section  (1),  by  a  notified  order,  

issue a roster which shall be continuously applied till it  

is exhausted.

49

(6)If  a  person  belonging  to  any  of  the  categories  

mentioned in Sub-section (1) gets selected on the basis of  

merit in an open competition with general candidates, he  

shall not be adjusted against the vacancies reserved for  

such category under Sub-section (1).

(7)If on the date of commencement of this Act, reservation  

was in force under Government Orders  for appointment  

to  posts  to  be  filled  by  promotion,  such  Government  

Orders  shall  continue  to  be  applicable  till  they  are  

modified or revoked.”

Section 8 of the   Act of 1994 reads as under:-

“8.Concession and relaxation- (1) The State Government  

may, in favour of the categories of persons mentioned in  

sub-section  (1)  of  Section  3,  by  order,  grant  such  

concessions  in  respect  of  fees  for  any  competitive  

examination  or  interview  and  relaxation  in  upper  age  

limit, as it may consider necessary.

(2)The  Government  orders  in  force  on  the  date  of  

commencement of this Act, in respect of concessions and  

relaxations,  including  concession  in  fees   for  any  

50

competitive  examination or interview and relaxation in  

upper age limit and those relative to reservation in direct  

recruitment  and promotion,  in  favour  of   categories  of  

persons  referred  to  in  Sub-section  (1),  which  are  not  

inconsistent  with  the  provisions  of  this  Act,  shall  

continue  to  be  applicable  till  they  are  modified  or  

revoked, as the case may be.”

51. Schedule  II   gives  a  list  of  category  of  persons  to  whom  

reservation under Section 3 (1) would not be available, as they  fall  

within the category of persons commonly known as “creamy layer”.  

A  perusal  of  Section  3  (1)  would  show  that  it  provides  for  

reservation  in  favour  of  the  categories  mentioned  therein  at  the  

stage of direct recruitment. The controversy between the parties in  

these appeals is limited to sub-section (6) of Section 3 and Section 8  

of  the  1994 Act.  It  was strenuously  argued by Mr.Rao and  Dr.  

Rajeev  Dhawan that  Section 3  (6)  of   the  Act  of  1994 does  not  

permit  the  reserved  category  candidates  to  be  adjusted  against  

general category vacancies  who had applied as reserved category  

candidate. In the alternative, learned counsel had submitted that at  

least such reserved category  candidate who had appeared availing  

51

relaxation of age available to reserved category candidates cannot  

be said  to have competed at par  in Open Competition with General  

category candidates, and therefore, cannot be adjusted against the  

vacancies meant for General  Category Candidates.  We are of  the  

considered opinion that the concessions falling within  Section 8 of  

the Act of 1994 cannot be said to be relaxations in the standard  

prescribed  for  qualifying  in  the  written  examination.  Section  8  

clearly  provides  that   the  State  Government  may  provide  for  

concessions  in  respect  of  fees  in  the  competitive  examination  or  

interview  and  relaxation  in  upper  age  limit.  Soon  after  the  

enforcement of the 1994 Act the Government issued instructions  

dated 25.03.1994 on the subject of reservation for Scheduled Caste,  

Scheduled Tribe and other backward groups in the Uttar Pradesh  

Public Services. These instructions, inter alia, provide as under:-

“4. If any person belonging to reserved categories  is  selected  on  the  basis  of  merits  in  open  competition  along  with  general  candidates,  then  he will not be adjusted towards reserved category,   that  is,  he  shall    be  deemed  to  have  been  adjusted  against  the  unreserved  vacancies.  It   shall  be  immaterial  that  he  has  availed  any  facility  or  relaxation  (like relaxation  in  age  limit)   available to reserved category.”

52

52. From the above it becomes quite apparent that the relaxation  

in age limit is merely to enable the reserved category candidate to  

compete with the general category candidate, all other things being  

equal.  The State has not treated the relaxation in age and fee as  

relaxation in the standard for selection, based on the merit of the  

candidate in the selection test i.e.  Main Written Test followed by  

Interview.  Therefore,  such  relaxations  cannot  deprive  a  reserved  

category  candidate  of  the  right  to  be  considered  as  a  general  

category  candidate  on  the  basis  of  merit  in  the  competitive  

examination.  Sub-section (2)  of   Section 8 further provides that  

Government Orders in force on the commencement of the Act in  

respect of the concessions and relaxations including relaxation in  

upper age limit which are not inconsistent with the Act continue to  

be applicable till they are modified or  revoked. Learned counsel for  

the appellants  had submitted that in the present appeals, the issue  

is  only  with  regard  to  age  relaxation  and   not  to  any  other  

concessions. The vires of Section 3 (6) or Section 8 have not been  

challenged  before  us.  It  was  only  submitted  by  the  learned  Sr.  

Counsel for the petitioners/appellants that age relaxation gives an  

undue  advantage  to  the  candidate  belonging  to  the  reserved  

53

category. They are more  experienced and, therefore, steal   a march  

over General Category candidates whose ages range  from 21 to 25  

years. It is  not disputed before us that relaxation in age is not only  

given to members of the Scheduled Castes, Scheduled Tribes and  

OBCs,  but  also  the  dependents  of   Freedom Fighters.  Such age  

relaxation is also given to Ex-servicemen to the extent of service  

rendered in  the  Army,  plus  three  years.  In  fact,  the  educational  

qualifications in the case of Ex-servicemen is only intermediate or  

equivalent  whereas  for  the  General  category  candidates  it  is  

graduation.  It  is  also  accepted  before  us  that  Ex-servicemen  

compete not only in their own category, but also with the General  

category  candidates.  No grievance  has been made by  any of  the  

appellants/petitioners with regard to the age relaxation granted to  

the Ex-servicemen. Similarly, the dependents of Freedom Fighters  

are also free to compete in the General category if they secure more  

marks than the last candidate in the General category. Therefore,  

we do not find much substance in the submission of the learned  

counsel for the appellants that  relaxation in age “queers the pitch”  

in favour of the reserved category  at the expense of the General  

category.  In  our  opinion,  the  relaxation  in  age  does  not  in  any  

54

manner upset the “level playing field”. It is not possible to accept  

the  submission  of  the  learned  counsel  for  the  appellants  that  

relaxation in age or the concession in fee would in any manner be  

infringement of Article 16 (1) of the  Constitution of India. These  

concessions   are  provisions  pertaining  to  the  eligibility  of  a  

candidate to appear in the competitive examination.  At the time  

when the concessions are availed, the open competition  has not  

commenced. It commences when all the candidates who fulfill the  

eligibility  conditions,  namely,  qualifications,  age,  preliminary  

written  test   and physical  test  are  permitted  to  sit  in  the  main  

written examination.  With age relaxation and the fee concession,  

the  reserved  candidates  are  merely  brought  within  the  zone  of  

consideration, so that they can participate in the open competition  

on  merit.  Once  the  candidate  participates  in  the  written  

examination, it is immaterial as to which category, the candidate  

belongs.  All  the  candidates   to  be    declared   eligible  had  

participated in the Preliminary  Test as also in the Physical Test. It  

is only thereafter that successful candidates have been permitted to  

participate in the open competition.

55

53. Mr. Rao had suggested that Section 3  (6) ensures that there is  

a level playing field in open competition. However, Section 8 lowers  

the level playing field, by providing concessions in respect of fees for  

any competitive examination or interview and relaxation in upper  

age limit. We are unable to accept the aforesaid submission. Section  

3 (6) is clear and unambiguous. It clearly provides that a reserved  

category candidate who gets selected on the basis of merit in open  

competition with general category candidates shall not be adjusted  

against the reserved vacancies. Section 3(1), 3(6) and Section 8 are  

inter-connected.   Expression  “open  competition”  in  Section  3  (6)  

clearly provides that all eligible candidates have to be assessed on  

the  same  criteria.  We  have  already  noticed  earlier  that  all  the  

candidates  irrespective of the category they belong to have been  

subjected  to  the  uniform  selection  criteria.   All  of  them  have  

participated in the Preliminary Written Test and the Physical Test  

followed by the Main Written Test and the Interview.  Such being  

the position, we are unable to accept the submissions of the learned  

counsel  for  the  petitioners/appellants  that  the  reserved  category  

candidates having  availed relaxation of age are disqualified to be  

adjusted against the Open  Category seats. It was perhaps to  avoid  

56

any further  confusion that  the  State  of  UP issued  directions  on  

25.3.1994 to ensure compliance of the various provisions of the Act.  

Non-compliance by any Officer was in fact made punishable with  

imprisonment which may extend to period of three months.  

54. In view of the above, the appeals filed by the General Category  

candidates  are  without  any  substance,  and   are,  therefore,  

dismissed.

Civil Appeal Nos………………………………………….…of 2010 (Arising out of SLP (C) NOS. 14078-80 of 2008 and 19100 of 2009)

Leave granted.

55. In the appeal filed by the State of UP it was submitted that  

against the 67 posts of general category reserved for women only 15  

qualified candidates were available.  They were duly selected.  52  

posts,  which  remained  unfilled,  were  filled  up  from  the  male  

candidates  in  accordance  with  GO dated  26.02.1999.  Therefore,  

there  remained  no  unfilled  vacancy  in  the  general  category.  

Therefore,  the  Division Bench erred in coming to  the  conclusion  

that  52  vacancies  have  been  carried  forward  contrary  to  the  

aforesaid  GO.   It  was further  submitted  that  the  learned  Single  

57

Judge erred by directing the appellants to fill up the vacancy which  

were excluded from 2% sports quota from the aforesaid selection.  

According to the appellants,  the advertisement clearly mentioned  

that the vacancies under the sports quota shall be filled separately.  

Therefore, the learned Single Judge was not justified in directing for  

filling up of these vacancies from this very selection.  According to  

Mr.  Dwivedi,  the  entire  factual  position  was  placed  before  the  

learned  Single  Judge  in  the  counter  affidavit  which  was  duly  

noticed by the learned Single Judge as follows:-

“In  the  counter  affidavit  the respondents have given  details  pertaining  to  the  candidates   belonging  to  different categories who were finally selected and the  percentage of  reservation fixed according to number of   posts. According to the respondents total posts for Sub  Inspector Civil Police were 1231 (male) + 148 female  (ten  per  cent  posts  were  referred to be reserved for  women).  According  to  the  respondents  the   advertisement  for  1634  posts  was  published  containing  1231  male  +  148  (female)  Sub  Inspector   Civil  Police  and  255  Platoon  Commander.  It  was   stated  that  according  to  the  police  of  the  State  2%  posts  were  reserved  for  sports  men  hence  against   1478 posts of Sub Inspector 2% i.e. 29 posts of Sub  Inspector  were  earmarked  for  sports  men  and  five  posts of Platoon Commander in sports quota.  It  was   thus  stated  that  1350 posts were  for Sub Inspector   civil  police  and  250  posts  were  to  be  filled  up  by  Platoon Commanders. The percentage  of reservation   against  the  aforesaid  posts  have been mentioned in  

58

paragraph  4  of  the  supplementary  counter-affidavit   which is extracted below.

1-Posts 1350 for Sub Inspector, Civil Police

Sl.No

.

Caste/Class Percentage  of  reservation

Male Female 10%

Total

1 General Caste  (Unreserved)

50% 608 67 675

2 8  Backward  Class (reserved)

27% 328 37 365

3 8  Scheduled  Caste (reserved)

21% 255 28 283

4 84  Scheduled  Tribe

2% 24 03 027

    1005 1215 135 1350 5 Dependent  of   

Freedom  Fighters

2% 24 03 27

6. Ex-servicemen 1% 12 01 13

 (2) 250 Posts for Platoon Commander, PAC

Sl.No

.

Caste/Class Percentage  of  reservation

Male

1 General Caste  (Unreserved)

50% 125

2  Backward  Class (reserved)

27% 67      

3 8  Scheduled  Caste

21% 53

59

4 84  Scheduled  Tribe

2% 05

100%    250

It  has  been  stated  in  the  supplementary  counter   affidavit that 608 male belonging to general category  were selected, against 67 posts of general category  for women only 15 women were available who were  selected rest of 52 posts were filled up on merit from  male candidates in accordance with the Government  order dated 26.02.1999.  It was stated that the total   675 posts in general category were filled up and no  post of general category is vacant. “

56. Mr.  Dwivedi  further  submits  that  the  learned  Single  Judge  

took  note  of  the  averments  made  in  paragraph  4  of  the  

supplementary  counter  affidavit,  and  yet  issued  a  direction  to  

recalculate the number of posts of general category candidates by  

applying 2% reservation for sportsmen horizontally and adding 2%  

posts of sportsmen also while calculating the number of vacancy of  

general category candidates.  Mr. Dwivedi further submits that the  

learned Single Judge erred in holding that the Government order  

dated 26.02.1999 does not specifically provide that the post which  

are not filled up by women candidates are to be filled up from the  

male candidates.  The Division Bench was, therefore, justified that  

the  aforesaid  view  of  the  learned  Single  Judge  was  apparently  

erroneous and inconsistent to the specific provisions contained in  

60

paragraph  4  of  GO  dated  26.02.1999.   The  Division  Bench,  

however,  committed  a  factual  error  in  recording  the  following  

conclusion “we are constrained to hold that the authorities erred in  

law by leaving the vacancies kept for reserved women candidates   

unfilled  instead  of  selecting  and  recommending  suitable  male  

candidates of respective category of the same selection”.   

57. Aggrieved against  the  aforesaid  observations,  the  appellants  

sought  review  of  the  aforesaid  judgement  which  has  been  

erroneously dismissed by simply recording:-

“We  have  head  Sri  G.S.  Upadhyay,  learned  Standing counsel appearing for the applicant.  It is   submitted that this Court’s observation at page 65  and  66  in  respect  of  vacancies  reserved  for  woman  and  sports  quota  which  remain  unfilled  needs clarification.

We are of the view that our judgement is clear and   it  does not  suffer from any  ambiguity  and  thus   does not require to be clarified  or recalled.”

58. As  noticed  earlier,  Mr.  L.N.  Rao  and  Dr.Dhawan  had  

submitted  that  the  vacancies  reserved  for  women  and  for  the  

outstanding sportsperson had to  be filled by applying “horizontal  

reservation”.  No carrying forward of the vacancies was permissible.  

61

59. We  have  considered  the  submissions  made  by  the  learned  

counsel.  It is accepted by all the learned counsel for the parties  

that these vacancies had to be filled by applying the principle of  

horizontal  reservation.   This  was  also  accepted  by  the  learned  

Single Judge as well as by the Division Bench.  This in consonance  

with the law laid down by this Court in the case of Indra Sawhney  

case (supra):-

“812. We are also of the opinion that this rule of   50%  applies  only  to  reservations  in  favour  of   backward classes made under Article 16(4).  A little   clarification  is  in  order  at  this  juncture;  all  reservations are not of the same nature.  There are   two types of reservations, which may, for the sake of  convenience, be referred to as ‘vertical reservations’   and  horizontal  reservations’.   The  reservations  in  favour  of  Scheduled Castes,  Scheduled Tribes and  other backward classes [under Article 16(4)] may be  called vertical  reservations whereas reservations in  favour of physically handicapped [under clause (1) of   Article  16]  can  be  referred  to  as  horizontal   reservations.  Horizontal reservations cut across the   vertical  reservations  –  what  is  called  interlocking  reservations.  To be more precise, suppose 3% of the   vacancies  are  reserved  in  favour  of  physically  handicapped  persons;  this  would  be  a  reservation   relatable  to  clause  (1)  of  Article  16.   The  persons  selected  against  this  quota  will  be  placed  in  the   appropriate category; if he belongs to SC category he  will  be  placed  in  that  quota  by  making  necessary  adjustments;  similarly,  if  he  belongs  to  open  competition (OC) category, he will  be placed in that   category  by  making  necessary  adjustments.  Even  

62

after providing for these horizontal reservations, the   percentage  of  reservations  in  favour  of  backward  class of citizens remains – and should remain – the   same.   This  is how these reservations  are  worked  out in several  States  and there  is  no reason no to   continue that procedure.”  

60. The aforesaid principle  of  law has been incorporated in the  

instructions dated 26.02.1999.  Paragraphs 2 and 4 of the aforesaid  

instructions which are relevant are hereunder:-

“2.  The reservation will be horizontal in nature i.e.   to  say that  category for which  a women has been  selected  under  the  aforesaid  reservation  policy  for  posts for women in Public Services and on the posts  meant for direct recruitment under State Government,  shall be adjusted in the same category only;

xxxx xxxx xxxx xxx

4. If a suitable women candidate is not available   for the  post  reserved for women in  Public  Services  and on the posts meant for direct recruitment under  State Government, then such a post shall be filled up  from amongst a suitable male candidate and such a  post shall not be carried forward for future;”

61. The  Learned  Single  Judge  whilst  interpreting  the  aforesaid,  

has observed that it does not specifically provide for posts which are  

not filled up by women candidates to be filled up from the male  

candidates.  This view is contrary to the specific provision contained  

63

in Paragraph 4.  The aforesaid provision leaves no matter of doubt  

that any posts reserved for women which remain unfilled have to be  

filled up from amongst suitable male candidates. There is a specific  

prohibition  that  posts  shall  not  be  carried  forward  for  future.  

Therefore, the view expressed by the Learned Single Judge cannot  

be sustained.   

62. We  may  also  notice  here  that  in  view  of  the  aforesaid  

provisions,  the  State  has not  carried  forward any of  the  general  

category posts reserved for women and outstanding sportspersons.  

Furthermore,  all  the  posts  remaining  unfilled,  in  the  category  

reserved for women have been filled up by suitable male candidates,  

therefore, clearly no post has been carried forward. Therefore the  

mandate in Indra Sawhney (supra) and the G.O. dated 26.2.1999,  

have been fully coupled with. We are also of the opinion that the  

conclusion recorded by the Division Bench is without any factual  

basis.  The factual  position was brought to the notice of  Division  

Bench in  the  recall/modification  application  No.251407 of  2007.  

However, the recall/modification application was rejected.   We are,  

therefore, of the opinion that the Division Bench erred in issuing  

the  directions  to  the  appellants  to  fill  in  the  unfilled  vacancies  

64

reserved for women candidates from suitable male candidates.  This  

exercise had already been completed by the appellant-State.    

63. As  noticed  earlier,  the  learned  Single  Judge  despite  taking  

note of the averments made in the supplementary counter affidavit  

by  the  State,  erroneously  issued  directions  to  recalculate  the  

vacancies  reserved  for  outstanding  sportspersons.   It  was  

specifically  pointed  out  that  a  separate  advertisement  had  been  

published  for  recruitment  on  the  post  reserved  for  outstanding  

sportsperson.  It was also pointed out that all the posts available in  

the  category  of  sportsmen  were  filled  up  in  the  subsequent  

selection.  No post remained unfilled.  Therefore, the conclusion of  

the learned Single Judge that the (29 SICP) + (5 PC) i.e. 34 posts  

ought not to have been deducted from the available 1478 posts for  

the purposes of calculating the number of vacancies available to the  

general category, was factually erroneous.  It is not disputed before  

us that the principle of horizontal reservation would also apply for  

filling up the post reserved for outstanding sportsperson.  It is also  

not disputed before us that there could have been no carry forward  

of any of the post remaining unfilled in the category of outstanding  

sportsperson.  As a matter of fact, there was no carry forward of the  

65

vacancies.  They  were  filled  in  accordance  with  the  various  

instructions issued by the Government from time to time.  In our  

opinion the Division Bench erred in law in concluding that since the  

advertisement  did  not  mention  that  a  separate  selection  will  be  

held, for the post reserved for sportsmen, the same would not be  

permissible in law. The deduction of 34 posts for separate selection  

would not in any manner affect the overall ratio of reservation as  

provided by law.   Furthermore,  there  is  no carry forward of  any  

post.  The separate selection is clearly part and parcel of the main  

selection.  In view of the factual situation, we are of the opinion,  

that the conclusions recorded by the learned Single Judge and the  

Division  Bench  with  regard  to  the  34  posts  reserved  for  the  

outstanding sportsmen category i.e. (29 SICP) + (5 PC) also cannot  

be sustained.   

64. Therefore,  the  aforesaid  appeals  filed  by  the  State  and  the  

Director General of Police are allowed.  The direction issued by the  

learned Single Judge in the final paragraph as well as the directions  

issued by the Division Bench in modification of the order of learned  

Single Judge are set aside.  

66

..……….……………………….J (TARUN CHATTERJEE)

      ..…………………………………J       (SURINDER SINGH NIJJAR)

NEW DELHI, JANUARY 08, 2010.        

67