A Full Bench of Allahabad High Court laid down the law in the matter of adopting mechanism for application of horizontal reservation in respect of various categories such as women, dependents of freedom fighters, physically handicapped, Ex-servicemen in the State of U.P.
A Division Bench of Allahabad High Court in Writ A No. 40695 of 2005, doubting the correctness of the Judgment of the Division Bench in the case of Rajeev Kumar Vs. State of U.P. (2010) 7 ADJ 608, referred the matter to the larger bench for an authoritative pronouncement on the issue of application of Horizontal Reservation.
The Conflict of Judgments:
In Rajeev Kumar Vs. State of U.P. (2010) 7 ADJ 608, a Division Bench, taking note of Anil Kumar Gupta Vs. State of Uttar Pradesh [(1995) 5 SCC 173] and Rajesh Kumar Daria Vs. Rajasthan Public Service Commission & others,(2007 (8) SCC 785) held that the horizontal reservation for women has to be given category wise.
Whereas, in Sheo Shankar Singh Vs. Public Service Commission (1996 AWC 1501), the Division Bench while dealing with the method of application of horizontal reservation of Ex-servicemen under the U.P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters & Ex-servicemen) Act’ 1993 noticing the observations of the Apex Court in Indra Sawhney Vs. Union of India (A.I.R. 1993 SC 477), held that dividing vacancies reserved for Ex-servicemen and allocating them to Scheduled Castes, Scheduled Tribes, Backward Classes and General candidate is without jurisdiction. All Ex-servicemen, who applied against their reserved quota have to be treated as persons belonging to the one, and the same class and all of them are to be considered against all the vacancies reserved for them strictly based on the merit irrespective of the caste/class to which they belong.
What is Overall Reservation and Comparmentalized Reservation:
- Overall reservation: – Where the seats reserved for horizontal reservation, if not specified being in the proportion of the seats reserved for open category, S.C., S.T. & O.B.C., the requisite number of horizontal reservation candidates shall have to be kept in and adjusted/accommodated against their respective social reserved categories by deleting the corresponding number of candidates from their list.
- Compartmentalized reservation:- In the case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above has to be applied separately to each of the vertical reservation. In such a case, the percentage of the quota reserved in favour of the horizontal categories, Overall, may or may not be satisfied.
- Whether the judgment and order of the Division Bench in the case of Rajeev Kumar insofar as it lays down that “the reservation has to be spread evenly for the representation of female category candidates to the extent of a minimum of 20 percent each category”, is the correct principle of law in the matter of the application of horizontal reservation regarding the provisions applicable in the State of U.P. or not?
- Whether the application of horizontal reservation has to be affected in terms of the Division Bench judgment of the Allahabad High Court in the case of Sheo Shankar Singh (supra) and Brijendra Deo Mishra (supra), or the reservation has to be applied compartmentalized, as has been suggested in the case of Rajeev Kumar (supra)?
- What should be the mechanism for application of horizontal reservation in respect of various categories provided therein, namely women, dependents of freedom fighter, physical handicapped etc. in the State of UP.?”
Stand of the State:
- Relying upon instruction dated 11.04.2009, the Counsel for State submitted that the reservation for women in the State of U.P. is horizontal and has to be applied “Overall”.
- The selected woman is to be adjusted in the category to which she belongs, i.e. if a selected woman belongs to a Scheduled Caste category, she will be placed in that category only.
- The women selected on their merit, however, shall be counted against the vacancies reserved for women candidates, i.e. 20%, quota.
Submission of the Counsels for Compartmantelized Reservation:
- Government order dated 26.02.1999 providing for reservation for women in public services in the State of U.P. itself contemplates “compartmentalized horizontal reservation.”
- Relying upon various Judgments, it was submitted that the women reservation should be compartmentalized, i.e. the women shall be adjusted proportionately in the respective category to which the women candidates belong.
- A consistent view has been taken by the Division Benches of Allahabad High Court have been upheld by the Apex Court while dismissing Special Leave Petitions with the declaration of legal position with regard to the method of application of women reservation. It is, thus, not open for the Larger Bench to answer the reference.
Submission of the Counsels for Overall Reservation:
- There exists no provision mandating implementation of horizontal reservation category-wise in the State of U.P. and the method of implementation of the horizontal reservation is only an “Overall” reservation.
- The category wise implementation of horizontal reservation by distributing the vacancies between S.C., S.T., O.B.C. and open category has been held to be an incorrect method in two Division Bench judgements in Sheo Shankar Singh (supra) and Bijendra Dev Mishra (supra).
- The judgement of the Apex Court in Rajesh Kumar Daria (supra) relates to the interpretation of a statutory rule governing recruitment which required implementation of horizontal reservation category-wise.
- In Anil Kumar Gupta (supra) both methods of implementation of reservation, i.e. “Overall” and “Compartmentalized” have been recognized.
- Under the scheme, the person selected against the reserved quota of the horizontal category will be placed in his social category, i.e. if he belongs to Scheduled Caste Category, he will be placed in that quota/category by making the necessary adjustment. Similarly, if he belongs to the open category, he will be placed in that category by making the necessary adjustment. The necessary adjustment would mean displacement of the last selected candidate in the merit list of the social category, to give way to the selected candidates in the horizontal category, to fill the quota of that category. The said adjustment is necessary as the percentage of reservation in favour of social reserved category (S.C., S.T. & O.B.C.) has to remain the same, i.e. the reserved seats cannot exceed 50% of the total vacancies.
- The scheme of subsection (3) of Section 3 of Act’ 1993 and clause (2) of the Government order dated 26.02.1999 both contemplates only the method of displacement or adjustment, i.e. the displacement of candidates of the respective social category to give way to the horizontal category candidates and it cannot be interpreted to provide a proportionate division of horizontal reserved seats among the (vertical) social reserved category.
Issue No. 2
- The decisions in Sheo Shankar Singh (supra) & Bijendra Dev Mishra (supra), rendered in the year 1996, before the implementation of women reservation by the Government order dated 26.02.1999 in the State of U.P., have no relevance for the issue at hands.
Issue No.3- How to Apply Horizontal Reservation
1. First step shall be to fill the vacancies of the open category (50%) based on merit.
2. Second step shall be to fill each of the social reservation quotas, i.e. S.C., S.T. & O.B.C.
3. Third step shall be to find out how many candidates belonging to the special reservation quota (women) have been selected on the above basis.
If the fixed women quota is already satisfied, no further question shall arise of implementation of women reservation. To repeat the illustration given above, if 20 out of 100 (20%) women make it to the merit list, (on their own merit), the women quota (20%) will be taken as stood satisfied.
Only in the event of shortfall in the said “Overall” position at the end of the third step, i.e. after preparation of all four merit lists of social categories, i.e. General, S.C., S.T. & O.B.C., the question of application of women reservation would arise, i.e. steps will have to be taken to fill “the Short-fall” by the implementation of women reservation. There is a consensus up to this stage, i.e. that under the scheme of the Government order, if the adequate number of women are selected on their merit, there is no question of implementation of women reservation.
In the case of a shortfall, the impact of both the methods as below:-
In case, it is “Overall” reservation, women candidates from their inter-se merit shall have to be taken and adjusted against their respective social reservation categories by deleting the corresponding number of male candidates therefrom, i.e.:- women of the category available in their inter-se merit from the top will be adjusted. Suppose, the shortfall is of 5, then five women from the top of their inter-se merit list will be adjusted in the category to which they belong, if they all are of open category, five male candidates from the bottom of the open category list will have to go to bring the selected women candidates in.
If, however, in case of compartmentalized horizontal reservation, then the proportionate representation of women in each social reserved category has to be seen, i.e. if 20% (of 50%) in open category women have found a place on merit, there will be no displacement of male candidates from the merit list of open category. Similarly, the lists of S.C./S.T. & O.B.C. categories have to be scrutinized, and the process of the verification and adjustment/accommodation as stated above will have to be applied separately to each of the social/vertical reservation category.
As in the case of compartmentalized reservation, the shortfall in women quota is proportionately divided among the vertical/social reservation categories; it is not transferable. The women of any of the social category, if are not available, the shortfall cannot be filled by bringing in women of other social categories, i.e. the shortfall cannot be shifted to another social category. In that case, the reservation quota of 20%, “Overall”, may or may not be satisfied.
The observations in Anil Kumar Gupta (supra) in paragraph no.’17’ & ’18’ are followed and reiterated to hold that the method of implementation of horizontal reservation in favour of women in the State of U.P. shall be a “compartmentalized horizontal reservation” in the manner stated above, to avoid any complication and intractable problems in future.
The method of compartmentalization or proportionate representation by dividing seats reserved for women candidates amongst the vertical (social) categories being in the watertight compartment and not inter-transferable, shall be the rule and “Overall” method of implementation at the last stage of filling the shortfall shall be the exception, which can be applied in a particular selection, after taking a conscious decision by the State by notifying for application of the said method, being “Overall”, in the advertisement itself.