Reportable

IN THE SUPREME COURT OF  INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. 5987 of 2007

Public Service Commission, Uttaranchal           ..Appellant  

Versus

Mamta Bisht & Ors.                    ..Respondents

With  

Civil Appeal No. 5982 of 2007

State of Uttaranchal  ….Appellant  

Versus

Mamta Bisht & Ors.               ...Respondents

J U D G M E N T

Dr. B. S. CHAUHAN, J.

1. These appeals have been preferred by the Public Service  

Commission and the State Government of Uttaranchal being  

aggrieved  of  the  judgment  and  order  of  the  High  Court  of

Uttaranchal,  Nainital  dated  26.10.2005  allowing  the  Writ  

Petition  No.780  of  2003  (M/B)  and  directing  the  present  

appellants to appoint respondent No.1- Ms. Mamta Bisht as  

Civil Judge, Junior Division in the State of Uttaranchal.  

2. Facts and circumstances giving rise to these appeals  are  

that  Public  Service  Commission,  Uttaranchal  (hereinafter  

referred to as the ‘Commission’) issued an advertisement dated  

7.6.2002  inviting  applications  for  35  posts  of  Civil  Judge,  

(Junior  Division)  with  a  stipulation  that  the  number  of  

vacancies may be increased or decreased. It clarified that the  

reservation  policy  adopted  by  the  State  i.e.  reservation  in  

favour of SC/ST/OBC and horizontal reservation in favour of  

handicapped, and women etc. belonging to Uttaranchal would  

be applicable.  Respondent No.1 applied in pursuance of the  

said advertisement seeking benefit of reservation in favour of  

Uttaranchal women. She qualified in the written examination  

and thus faced the  interview held  by  the  Commission.  The  

final result  of the selection was declared on 31.7.2003 and it  

was  evident  from  the  result  that  respondent  No.1  was  not  

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selected. Instead of filling of 35 vacancies, recommendations to  

fill up 42 vacancies were made as the decision had been taken  

in this regard prior to declaration of result. Out of 42 posts, 26  

were filled up by general category and 16 by reserved category  

candidates. Some women candidates stood selected in general  

category while others had been given the benefit of  horizontal  

reservation being  resident  of  Uttaranchal.  Respondent  No.1,  

being aggrieved preferred Writ Petition No.780 of 2003 (M/B)  

in the High Court of Uttaranchal seeking quashment of select  

list  dated  31.7.2003  mainly  on  the  ground  that  women  

candidates  belonging  to  Uttaranchal  had  secured  marks  

making them eligible to be selected in general  category and  

had it been done so, respondent No.1 could have been selected  

in reserved category being a woman of Uttaranchal. It had also  

been  pleaded  in  the  petition  that  some  of  the  women  

candidates  who  not  only  claimed  the  benefit  of  horizontal  

reservation but have been selected giving the said benefit, did  

not submit their respective certificate of domicile at the time of  

filling  up the  application forms but  they  produced the said  

certificate at a later stage and it was accepted. The High Court  

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accepted  the  first  submission  of  respondent  No.1  after  

examining the record of selection and came to the conclusion  

that last selected woman candidate who was given benefit of  

horizontal  reservation  for  Uttaranchal  women  had  secured  

marks  higher  than  the  last  selected  candidate  in  general  

category.  Thus,  the  said  candidate  ought  to  have  been  

appointed  against  the  general  category  vacancy  and  

respondent No.1 ought to have been offered the appointment  

giving her the benefit of horizontal reservation for Uttaranchal  

women. Hence, these appeals.  

3. Shri  S.S.  Shamshery,  Advocate  appearing  for  the  

Commission and Shri Ashok Mahajan, Advocate appearing for  

the  High  Court  have  submitted  that  all  the  vacancies  

advertised had already been filled up before the writ petition  

could  be  filed.  Not  a  single  successful  candidate  had  been  

impleaded as a respondent before the High Court. Thus, the  

petition ought to have been dismissed for not impleading the  

necessary parties. The High Court did not consider the issue  

of  acceptance  of  domicile  certificates  by  the  Uttaranchal  

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women at a belated stage nor any finding has been recorded  

on  the  said  issue.   The  High  Court  failed  to  consider  the  

principle that if  a reserved category candidate secures more  

marks than the last  selected candidate  in  general  category,  

then  he   is  to  be  appointed  against  the  general  category  

vacancy,  does not apply while giving the benefit of horizontal  

reservation. The writ petition filed by the respondent did not  

have any factual foundation or proper pleadings and thus was  

not  worth  entertaining.   It  is  well  neigh  impossible  to  

implement  the  judgment  of  the  High  Court  at  this  belated  

stage, for the reasons that all the vacancies advertised stood  

filled up in 2003. Subsequent to the selection involved herein  

appointments have been made several times. Judicial Officers  

appointed from the said selection have been promoted as Civil  

Judge  (Senior  Division).  Respondent  No.1  cannot  be  given  

seniority over and above the officers appointed in subsequent  

selections. Thus, appeals deserve to be allowed.   

4. On the contrary, Shri R. Venkataramani, learned senior  

counsel  appearing  for  respondent  No.1  has  vehemently  

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opposed the appeals contending that great injustice has been  

done to   respondent No.1. She has succeeded before the High  

Court  on  the  sole  ground  that  the  last  selected  candidate  

receiving  the  benefit  of  horizontal  reservation  in  favour  of  

Uttaranchal  women could  be  appointed  against  the  general  

category vacancy and the respondent No.1 ought to have been  

selected  giving  her  the  benefit  of  horizontal  reservation  in  

favour of Uttaranchal women.  There are still some vacancies  

from  the  said  selection  as  two  successful  candidates  have  

resigned after joining. Thus, respondent No.1 can be adjusted  

against  one  of  such vacancies.   Respondent  No.1  has been  

issued appointment letter dated 17.5.2010 in pursuance of the  

impugned judgment, but has not yet been given posting by the  

High Court. Thus, she could not join the service. Thus, the  

appeals are liable to be dismissed.  

5. We  have  considered  the  rival  submissions  made  by  

learned counsel for the parties and perused the record.  

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6. It  is  settled  legal  proposition  that  vacancies  over  and  

above the number of vacancies advertised cannot be filled up.  

Once  all  the  vacancies  are  filled  up,  the  selection  process  

comes to an end. In case a selected candidate after  joining  

resigns or dies, the vacancy, so occurred cannot be filled up  

from the panel, which stood already exhausted.  (Vide  Rakhi  

Ray & Ors. Vs. The High Court of Delhi & Ors. AIR 2010 SC  

932).   

However,  in  the  instant  case,  the  advertisement  itself  

made  it  clear  that  the  vacancies  could  be  increased  and  

decreased and before  completion of  the  selection process,  a  

decision had been taken to fill up 42 instead of 35 vacancies  

and reservation policy had been implemented accordingly.  

7. In case the respondent No.1 wanted her selection against  

the reserved category vacancy, the last selected candidate in  

that category was a necessary party and without impleading  

her, the writ petition could not have been entertained by the  

High  Court  in  view  of  the  law  laid  down  by  nearly  a  

Constitution  Bench  of  this  Court  in  Udit  Narain  Singh  

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Malpaharia  Vs.  Additional  Member,  Board  of  Revenue,  

Bihar  &  Anr., AIR  1963  SC  786,  wherein  the  Court  has  

explained  the  distinction  between  necessary  party,  proper  

party and proforma party and further  held  that if  a person  

who is likely to suffer from the order of the Court and has not  

been impleaded as a party has a right to ignore the said order  

as it has been passed in violation of the principles of natural  

justice. More so, proviso to Order I, Rule IX of Code of Civil  

Procedure,  1908  (hereinafter  called  CPC)  provide  that  non-

joinder of necessary party be fatal. Undoubtedly, provisions of  

CPC are  not  applicable  in  writ  jurisdiction  by  virtue  of  the  

provision  of  Section  141  CPC  but  the  principles  enshrined  

therein  are  applicable.  (Vide  Gulabchand Chhotalal  Parikh  

Vs. State of Gujarat;  AIR 1965 SC 1153; Babubhai Muljibhai  

Patel  Vs.  Nandlal,  Khodidas  Barat  & Ors.,  AIR 1974 SC  

2105; and  Sarguja Transport Service Vs. State Transport  

Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).

8. In Prabodh Verma & Ors. Vs. State of U.P. & Ors. AIR  

1985 SC 167; and Tridip Kumar Dingal & Ors. Vs. State of  

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West Bengal & Ors. (2009) 1 SCC 768), It has been held that  

if  a  person  challenges  the  selection  process,  successful  

candidates or at least some of them are necessary parties.

9. All the 42 vacancies had been filled up, implementing the  

reservation  policy.  All  the  women  candidates  selected  from  

reserved category indisputably belong to Uttaranchal and none  

of them is from another State.

10. The High Court decided the case on the sole ground that  

as  the  last  selected  candidate,  receiving  the  benefit  of  

horizontal reservation had secured marks more than the last  

selected general category candidate,  she ought to have been  

appointed against the vacancy in general category in view of  

the judgment of this Court in  Indra Sawhney Vs. Union of  

India, AIR 1993 SC 477, and  the Division Bench judgment of  

High Court of Uttaranchal in Writ Petition No.816/2002 (M/B)  

(Km.  Sikha  Agarwal  Vs.  State  of  Uttaranchal  &  Ors.)  

decided  on  16.4.2003,  and  respondent  no.1  ought  to  have  

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appointed giving benefit of reservation thus, allowed the writ  

petition filed by respondent No.1.  

11. In fact, the High Court allowed the writ petition only on  

the ground that the horizontal reservation is also to be applied  

as  vertical  reservation  in  favour  of  reserved  category  

candidates (social) as it held as under:  

“In  view of  above,  Neetu Joshi  (Sl.No.9,  Roll  No.12320)  has  wrongly  been  counted  by  the  respondent  No.3/Commission  against  five  seats  reserved for Uttaranchal Women General Category  as she has competed on her own merit as general  candidate and as 5th candidate the petitioner should  have been counted for Uttaranchal Women General  Category seats.”

12. Admittedly, the said Neetu Joshi has not been impleaded  

as  a  respondent.  It  has  been  stated  at  the  Bar  that  an  

application  for  impleadment  had  been  filed  but  there  is  

nothing on record to show that the said application had ever  

been  allowed.  Attempt  had  been  made  to  implead  some  

successful candidates before this Court but those applications  

stood rejected by this Court.   

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13. The  view  taken  by  the  High  Court  on  application  of  

horizontal reservation is contrary to the law laid down by this  

Court in Rajesh Kumar Daria Vs. Rajasthan Public Service  

Commission & Ors. AIR 2007 SC 3127, wherein dealing with  

a similar issue this Court held as under:

“9. The second relates to the difference between the  nature  of  vertical  reservation  and  horizontal  reservation. Social reservations in favour of SC, ST  and  OBC  under  Article  16(4)  are  “vertical  reservations”.  Special  reservations  in  favour  of  physically handicapped, women, etc., under Articles  16(1) or 15(3) are “horizontal reservations”. Where a  vertical reservation is made in favour of a Backward  Class under Article 16(4), the candidates belonging  to  such  Backward  Class,  may  compete  for  non- reserved posts and if they are appointed to the non- reserved posts on their own merit, their number will  not  be  counted  against  the  quota  reserved  for  respective Backward Class. Therefore, if the number  of  SC  candidates,  who  by  their  own  merit,  get  selected  to  open  competition  vacancies,  equals  or  even exceeds the percentage of  posts  reserved for  SC  candidates,  it  cannot  be  said  that  the  reservation quota for SCs has been filled. The entire  reservation  quota  will  be  intact  and  available  in  addition to those selected under open competition  category.  (Vide  Indra Sawhney,  R.K.  Sabharwal v.  State  of  Punjab,  Union  of  India v.  Virpal  Singh  Chauhan and  Ritesh R. Sah v.  Dr.Y.L. Yamul.) But  the  aforesaid  principle  applicable  to  vertical  (social) reservations will not apply to horizontal  

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(special) reservations. Where a special reservation  for women is provided within the social reservation  for Scheduled Castes, the proper procedure is first  to fill up the quota for Scheduled Castes in order of  merit and then find out the number of candidates  among them who belong to the special reservation  group of “Scheduled Caste women”.  If the number  of women in such list is equal to or more than  the  number  of  special  reservation  quota,  then  there  is  no  need for  further  selection  towards  the special reservation quota. Only if there is any  shortfall, the requisite number of Scheduled Caste  women  shall  have  to  be  taken  by  deleting  the  corresponding  number  of  candidates  from  the  bottom of the list relating to Scheduled Castes.  To  this  extent,  horizontal  (special)  reservation  differs  from  vertical  (social)  reservation.  Thus  women  selected  on  merit  within  the  vertical  reservation  quota  will  be  counted  against  the  horizontal  reservation  for  women.”  (Emphasis  added)

14. In view of the above, it is evident that the judgment and  

order of the High Court  is  not in consonance with law laid  

down  by  this  Court  in  Rajesh  Kumar  Daria  (supra).  The  

judgment and order impugned herein is liable to be set aside  

and  all  consequential  orders  become  unenforceable  and  

inconsequential.  

Thus, appeals succeed and are allowed. Judgment and  

order  of  the  High  Court  dated  26.10.2005  passed  in  Writ  

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Petition no.780/2003 (M/B) is hereby set aside.  No costs.     

…………………………………..J. (Dr. B.S. CHAUHAN)

…………………………………..J. (SWATANTER KUMAR)

New Delhi, June 3, 2010

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