w w w . L a w y e r S e r v i c e s . i n



Shantabai Laxman Doiphode v/s The State of Maharashtra, Through Principal Secretary, Industries & Labour Department & Others


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    Writ Petition No. 6326 of 2018

    Decided On, 14 October 2020

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE SUNIL B. SHUKRE & THE HONOURABLE MR. JUSTICE ROHIT B. DEO

    For the Petitioner: Mohan Sudame, Advocate. For the Respondents: R1 to R3, Neeraj Patil, Addl. G.P., R4, A. R. Patil, Learned Advocate.



Judgment Text

Oral Judgment: (Sunil B. Shukre, J.)1. Heard. Rule. Rule made returnable forthwith.2. Heard finally by consent of the learned counsel appearing for the parties.3. In the year 2015, various posts were available on the establishment of the respondent No.2 at different locations such as Mumbai, Pune, Nagpur, Aurangabad, Wai and Kolhapur and, therefore, recruitment drive came to be initiated. An advertisement was published inviting applications online from eligible candidates for being considered for their appointments to the posts advertised. The petitioner was interested in the post of Assistant Binder. There were in all 10 posts of Assistant Binder available at Nagpur Government Press, out of which 03 posts were for open category, 02 posts for women, 01 post for ex-servicemen and 01 post for each of the four categories of social reservations such as S.C., S.T., N.T.(D), N.T.(B) and S.B.C.4. The petitioner, who belongs to the social reservation category of N.T.(D), filled in her application seeking appointment to the post of Assistant Binder. In the application, petitioner mentioned her reservation category as N.T.(D). She also mentioned in her application that she was not interested in open category posts, the reason for which the petitioner now states is that, the petitioner was not very-much hopeful of her getting selected in the open category in view of the high standards which usually govern the selection of candidates in open category. But, the petitioner submits that in view of the settled law that all social reservation candidates like those belonging to the categories such as S.C., S.T., N.T., D.T. etc. can claim their selection not only against the reserved categories to which they belong, but also in the open category.5. There was a written test conducted at Government Printing Press, Civil Lines, Nagpur 03.03.2017 and the petitioner found her name amongst the 17 candidates, who were short listed for selection. The petitioner had secured 51 marks out of 100. The petitioner was one amongst three female candidates who were short listed. One short listed female candidate, Smt. Priya Naresh Gajbhiye, had secured 68 marks from out of 100, while the third short listed female candidate, Smt. Sushmita Rajendrasingh Purke, had secured 47 marks from out of 100.6. According to the petitioner, Smt. Priya Naresh Gajbhiye, though belonged to S.C. category, was selected in open category (women) considering her merit. The petitioner submits that the third short listed candidate, Smt. Sushmita Rajendrasingh Purke, having secured lowest marks among the three female candidates, was out of consideration for being selected in the open female category. But, in case of the petitioner, it is submitted, the claim for being selected for her appointment in the open female category, she being the second highest scorer after Smt. Priya Naresh Gajbhiye, was unimpeachable. However, to the surprise of the petitioner, from out of two posts available in the open female category, only one post was filled up by selecting Smt. Priya Naresh Gajbhiye and the second post in the same category was filled up by selecting respondent No.4, a male candidate.7. The petitioner challenged the action of the respondent Nos.1 to 3 by filing Original Application No.241 of 2017 before the Maharashtra Administrative Tribunal, Nagpur. The Tribunal found that the petitioner had applied only in the category N.T.(D) and had selected an option indicating that she was not interested in the posts available for open female category candidates. In such a case, according to the Tribunal, the procedure prescribed in G. R. dated 25.05.2001 came into play. The Tribunal noted that in Clause – 7 of the said G.R., the procedure prescribed was that if no female candidates were available for being selected against the women category reserved in particular categories of reservations, the unfilled posts meant for women candidates in the respective social reservations be filled up from amongst the male candidates belonging to the same category, without making any changes in the list of candidates selected against respective reservation categories. The Tribunal thus found that action of respondent Nos.1 to 3 was perfectly in order, as it was consistent with the mandate of Clause-7 of G. R. dated 25.05.2001 and dismissed the original application by its order passed on 27.04.2018. Being dis-satisfied with the same, the petitioner is before this Court seeking quashing of the impugned judgment and order and issuing a writ to the respondent No.2 for appointing the petitioner as Assistant Binder in the open (women) category.8. Shri Mohan Sudame, learned counsel for the petitioner submits that it is well settled law that open category is not a reserved category and when in the open category, horizontal reservation is provided for female candidates, the category would be available to be filled up from amongst all women candidates irrespective of their social reservations in which they would fall. He further submits that since the reservation of two posts for women in open category provided for in the instant case was a case of horizontal reservation for all women as such, the posts were available for female candidates irrespective of their affiliations with any social reservations and as such, the petitioner’s claim was required to be considered also against open (women) category. He submits that the respondent No.4, being a male candidate, could never have been considered for being selected against open (women) category when in the short listed female candidates, the petitioner was the second highest scorer and eligible for being selected against the second post reserved for open (women) category. Shri Sudame, places his reliance upon the cases of Charushila d/o Tukaram Chaudhari and Ors., vs. The State of Maharashtra and Anr., W.P. No. 4159 of 2018, decided on 08.08.2019, Smt. Tajaswini Raghunath Galande vs. The Chairman, Maharashtra Public Service Commission and Ors., W.P. No.5397 of 2016 with W.P. No.5396 of 2016, decided on 23.01.2019 and Asha Ramnath Gholap Vs. President, District Selection Committee/Collector, Beed and Ors., 2016 (3) ABR 376.9. Learned Additional Government Pleader would submit that the Maharashtra Administrative Tribunal correctly decided the claim of the petitioner recording a finding that no illegality has been committed by the respondent Nos.1 to 3 in not selecting the petitioner against open (women) category. He submits that the petitioner while applying for post of Assistant Binder, opted against her consideration for open (women) category and chose to confine her claim only to the category of N.T.(D) and therefore, her case was squarely covered by G.R. dated 25.05.2001, Clause-7, which dis-entitles her to get any appointment in open (women) category.10. Shri A. R. Patil, learned counsel for the respondent No.4 submits that as the petitioner never applied for open (women) category and only applied for her appointment in N.T.(D) category, which was not the case with the respondent No.4 who had also applied from open category, the respondent No.2 properly pressed into service Clause-7 of the G.R. dated 25.05.2001. He further submits that these factual aspects of the case have been appropriately considered by the respondent No.2 in the light of the well settled principles of law and, therefore, no fault could be found with the impugned judgment and order. He also points out that a candidate who has consciously taken part in the selection process cannot turn around and challenge the very selection process in which he has taken part. He submits that such a candidate acquiesces in the correctness of the selection process, waiving his right to challenge the same and is, therefore, estopped from raising a question over the recruitment process. He relies upon the law laid down in this regard by the Supreme Court in the case of Madras Institute of Development Studies and Anr., vs. K. Sivasubramaniyan and Ors., (2016) 1 SCC 454.11. Considering the arguments canvassed on behalf of both sides, following questions fall for our consideration.(1) Whether the petitioner, who claimed her appointment in the social reservation category of N.T.(D), could also stake her claim in open (women) category?(2) Whether the petitioner could have been selected in open (women) category by ignoring the claim of the petitioner in that category?Answers to these questions can be provided by considering the law which has now well crystallized over a period of time. In the case of Charushila (supra), Division Bench of this Court at Aurangabad, considering the various cases decided by the Supreme Court, which threw sufficient light upon concepts of “horizontal”, “vertical” and “compartmentalized” reservations, observed in paragraph No.48 as follows :“48. On consideration of judgments of the Hon'ble Supreme Court, reference to which has been made in this judgment, following conclusions emerge:(i) There are two types of reservations, which may be described as “vertical” and “horizontal”. Vertical reservations are “social” reservations provided under Article 15(4) and/ or 16(4) of the Constitution. Those are meant for Scheduled Castes, Scheduled Tribes and Other Backward Classes. “Horizontal” reservation is provided under Article 15(1) and/or 16(1) of the Constitution and those are available to women, physically handicapped, freedom fighters, sportsmen, Retired Military personnel, etc.(ii) In case the seats reserved for “horizontal” reservations are proportionately divided among the vertical (social) reservations and are not inter-transferable, it would be a case of compartmentalized reservation.(iii) As against this, what happens in “overall” reservation is that while allocating the special reservation category candidates to their respective social reservation, overall reservation in favour of special reservation categories is to be honoured.(iv) The proper and correct course is to first fill up the OC quota on the basis of merit; then fill up each of the social reservation quota, i.e. Scheduled Castes/Scheduled Tribes and Other Backward Class. The third step would be to find out how many candidates belonging to “special” reservation category have been selected on the above basis. If the quota fixed for horizontal reservation is already satisfied – in case it is an overall horizontal reservation - no further question arises, but if it is not so satisfied, the requisite number of “special” reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation category by deleting the corresponding number of candidates therefrom. If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation, as stated above, should be applied separately to each of the vertical reservations.(See: Anil Kumar Gupta Vs. State of U. P. and Ors.,(1995) 5 SCC 173 & Rajesh Kumar Dariya Vs. Rajasthan Public Service Commission and Ors., (2007) 8 SCC 785.)(v) There is no separate category in law recognized as open category. Open or Open Competition category consists of all the seats and the categories.(vi) It also cannot be disputed that a reserved category candidate claiming reservation as and by way of horizontal or vertical reservation, is always entitled to claim seat from open category as per his/her individual merit. This is particularly because open category or quota as such is meant to be fulfilled from amongst all categories and only on the basis of merit. In such allotments, caste, creed, sex or any other criteria relating to any candidate does not at all matter. If a candidate belonging to any reserved category is able to secure allotment of seat, solely on the basis of his merit, such seat or post is not liable to be counted against the said reserved category. Whereas, in case of horizontal reservations, the position is otherwise. The procedure prescribed for preparing the select list in the circulars dated 13.08.2014 and 19.12.2018 is correctly recorded. The reference to “open” seats in the circular dated 13.08.2014 shall be construed as a category comprising of the candidates on the basis of open competition and includes all reservation categories. The subsequent circular dated 19.12.2018 is of explanatory nature.(vii) The horizontal reservation specifically provided in compartmentalized manner is not interchangeable or inter - transferable. The ratio of the judgment in the matter of Jitendra Kumar Singh Vs. State of Uttar Pradesh, (2010) 3 SCC 119 has to be read in the context of statutory provisions and the Government Order dated 25.03.1994 and the said observations cannot be applied in case where the Government Orders are to the converse effect.(viii) when a relaxed standard is applied in selecting SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies. In the same context, when candidates availed of the relaxed standards, they are not entitled to claim migration to the open category.(Deepa E.V. Vs. Union of India and Ors., (2017) 12 SCC 680 and Gaurav Pradhan and Ors., Vs. State of Rajasthan and Ors., (2018) 11 SCC 352.)12. Further insights into the questions involved herein are provided by an analytical discussion made in another judgment of this Court rendered in the case of Smt. Tajaswini (supra). In this case, the Division Bench considering the cases of Rajesh Kumar Daria Vs. Rajasthan Public Service Commission and Ors. , (2007) 8 SC 785 and Indra Sawhney Vs. Union of India and Ors. , 1992 Supp. (3) SCC 215 and Anil Kumar Gupta Vs. State of U.P. , (1995) 5 SCC 173, held that, social reservations made in favour of S.C., S.T. and O.B.C. under Article 16(4) were “vertical reservations”, whereas, special reservations made in favour of physically handicapped, women etc. under Articles 16(1) or 15(3) were horizontal reservations. It found that as per settled law, 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 numbers will not be counted against the quota reserved for the respective backward classes. The Division Bench also considered the view taken by another Division Bench in the case of Asha Ramnath Gholap vs. President, District Selection Committee and Ors., 2016(3) ABR 376. In the case of Asha Ramnath Gholap (Supra), the question involved was regarding the manner in which to fill up the horizontal quota for women not prescribed within the social reservation but under the open category. It was held that when three posts were notified to be filled in by female candidates belonging to open category, it was open for the petitioner therein to compete for the said post irrespective of the fact that she belonged to the reserved category and when she had secured meritorious position amongst the female candidates.13. The relevant observations of this Court in Smt. Tejaswini (Supra) appearing in paragraphs Nos.11 and 12 are reproduced thus :“11. A Division Bench of this Court in case of Smt. Kanchan Vishwanath Jagtap and Anr., vs. Maharashtra Administrative Tribunal and Ors., 2016 (3) ABR 376 had an occasion to consider the identical issue. It will be relevant to refer the judgment and order of this Court in case of Smt. Kanchan Vishwanath Jagtap (Supra). The Division Bench, after referring to the law laid down by the Apex Court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Ors., (2007) 8 SCC 785 as well as in the judgment of the Constitution Bench of the Apex Court in case of Indra Sawhney & Others vs. Union of India, 2016(3) ABR 376 has observed thus:-“6. The only question that falls for consideration in the present writ petitions is as to whether the learned Tribunal has rightly considered the law laid down by the Apex Court in the Case of Rajesh Kumar Daria (supra) or not.7. Their Lordships of the Apex Court were considering the selection to the post of Munsiff-Magistrate in the Rajasthan Judicial Service made by the Rajasthan Public Service Commission. In the said case it can be seen that in the advertisement issued, the advertisement specifically provided for number of posts available for male as well as female in various categories including Open, SC, ST and OBC. It will be relevant to refer to the observations of the Apex Court in the case of Rajesh Kumar Daria (supra) in paragraph Nos. 8 and 9:-"8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be :"For SC : 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus :"For SC : 21 posts for men and 9 posts for women, in all 30 posts".Obviously, there is, and there can be, no reservation category of 'male' or 'men'.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 numbers will not be counted against the quota reserved for the 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 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 Indira Sawhney (Supra), R. K. Sabharwal vs. State of Punjab (1995 (2) SCC 745), Union of India vs. Virpal Singh Chauvan (1995 (6) SCC 684 and Ritesh R. Sah vs. Dr. Y. L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (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 Castes 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. Let us illustrate by an example :If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC women' have been selected in excess of the prescribed internal quota of four.]The perusal of the aforesaid observations of Their Lordships would reveal that the Apex Court has held that the reservations in favour of SC, ST and OBC under Article 16(4) were vertical reservation, whereas special reservations in favour of physically handicapped, women etc. under Articles 16(1) or 15(3) are horizontal reservations. It has been held that 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 numbers will not be counted against the quota reserved for the respective backward class. It is further held that 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 the reservation quota for SCs has been filled. It has been further held that the entire reservation quota will be intact and available in addition to those selected under Open Competition category.8. However, insofar as horizontal reservation is concerned. Their Lordships held that the said principle would not be applicable to it. It has been held that 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 Castes-Women'?. It has been further held that 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. It has been further held that 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. Their Lordships held that thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.9. It could thus be seen that the case that fell for consideration before Their Lordships of the Apex Court was regarding the compartmentalized reservation. In the said case, reservation was provided for various categories including SC, ST, OBC and within that reservation, particular number of posts were reserved for women category. In that view of the matter, Their Lordships held that the women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.10. However, the facts in the present case are totally different. In the present case, there is no compartmentalized reservation. Out of the six posts available, two are reserved for women. No doubt that it would have been more appropriate that in the light of the observations of Their Lordships in the case of Anil Kumar Gupta vs. State of U.P. reported in (1995) 5 Supreme Court Cases 173, the State ought to have provided reservation for women in particular vertical reservation category. However, that has not been done. In the advertisement, two posts are reserved for women category.11. It will be appropriate to refer to the following observations of the Constitution Bench of the Apex Court in paragraph 811 in the case of Indra Sawhney Vs. Union of India and ors. reported in 1992 Supp. (3) Supreme Court Cases 215:-811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.?12. It could thus be seen that the Constitution Bench of the Apex Court itself has held that if a Scheduled Castes candidates get selected in the open competition on the basis of their own merit, they will not be counted against the quota reserved for Scheduled Castes and they will be treated as open competition candidates.13. In the present case, out of the candidates who had applied against the women category, all the candidates who have been short-listed belong to the different reserved categories except the intervener in Writ Petition No. 1925 of 2014. In the interviews conducted, the petitioners were found to be the most meritorious candidates. We are, therefore, of the considered view that the facts in the present case would not be governed by the law laid down by the Apex Court in the case of Rajesh Kumar Daria (supra). We are of the view that if the view of the learned Tribunal is accepted, then it would result in a situation to exist, which is not permissible in view of the law laid down by the Constitution Bench of the Apex Court in the case of Indra Sawhney (supra). Merely because all the meritorious candidates in the women category belonged to the reserved categories like OBC, SC and ST, in our view cannot be a ground to deny them the benefit of their meritorious position. We find that if the view as accepted by the learned Tribunal is accepted, it will defeat constitutional mandate as explained in the judgment in the case of Indra Sawhney (supra) by the Constitution Bench of the Apex Court. A situation would exist that a male candidate belonging to a reserved category would be entitled to be selected against an open category post if he is entitled on his own merit. However, a female candidate belonging to a reserved category, even though she is much more meritorious than a candidate belonging to open category women, would not be entitled to be selected against the said post. The said situation in effect would result in permitting a discriminatory treatment to the women reserved candidates as against the male reserved candidates. We find that such a situation is not permissible under the Constitutional scheme as interpreted by the Constitution Bench of the Apex Court in the case of Indra Sawhney (supra).12. It is pertinent to note that another Division Bench of this Court, at Aurangabad in the case of Asha D/o. Ramnath Gholap (Supra), without noticing the view taken by the Division Bench at Nagpur in the case of Kanchan Vishwanath Jagtap (Supra), has taken an identical view. It will be relevant to refer to paragraphs 28 and 29 of the judgment of the Division Bench in the case of Asha D/o. Ramnath Gholap (Supra), which read as under:-“28) We have noticed that the law laid down by the Hon'ble Apex court in the case of Rajesh Kumar Dariya Vs. Rajasthan Public Service Commission and Ors., 2007 8 SCC 785, and Anil Kumar Gupta Vs. State of U. P. and Ors.,(1995) 5 SCC 173 is being mis-interpreted by the Administrative authorities. In Rajesh Kumar Daria's case, the Hon'ble Apex court has discussed about horizontal (special) reservation provided for women within the social reservation for scheduled caste and by giving an illustration, a conclusion is recorded that the women selected on merits within the vertical reservation quota will be counted against horizontal reservation for women. In Anil Kumar Gupta's case, the Hon'ble Apex court has ruled that the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom.29) Thus, in both the aforesaid judgments, the aspect dealt within by the Hon'ble Apex court was pertaining to filling up the horizontal quota ‘under vertical(social) reservation’. In the instant case, the question for determination is how to fill up the horizontal quota for women not prescribed within the social reservation but under open category. We have elaborately discussed herein before that there is no separate category like ‘open category’ and the expression ‘open category’ includes therein persons belonging to all categories irrespective of their caste, class or community or tribe. It is thus evident that when three posts were notified to be filled in by the female candidates belonging to open category, it was open for the petitioner to compete for the said post irrespective of the fact that she belongs to the reserved category and when she had secured meritorious position amongst the female candidates and had secured 2nd highest marks, her selection could not have been denied by the respondents on the ground that she belongs to scheduled caste and does not fall in the open category. As per the observations of the Hon'ble Apex court in the case of V.V.Giri Vs. D. Suri Dora, AIR 1959 SC 1318, which we have reproduced herein above, though the petitioner had applied from the scheduled castes category that does not mean that she had given up her right to be selected to the unreserved post or to the post for open category. The claim of eligibility for the reserved post does not exclude the claim for general seat. It is an additional claim.14. From the law expounded and clarified in the above referred cases following principles emerge:-(i) Kinds of reservations that have been developed over a period of time are “vertical” and “horizontal” reservations. The “vertical” reservations are those which are meant for socially backward classes as provided under Article 16(4) while “horizontal” reservations are those which are to be found in Articles 16(1) or 15(3).(ii) When horizontal or special reservations are provided within a particular social reservation, the rule applicable to vertical reservation i.e. candidates belonging to various reserved categories can compete for a non-reserved category will not apply. The rule governing such a case would be that the unfilled special or horizontal posts would have to be filled up by selecting other candidates falling in that special reservation category, in accordance with their merit, if available, with a further rider that such candidates should also fall within that particular social reservation category. Horizontal reservation thus specifically provided within a social reservation is an instance of compartmentalized reservation and such reservation is normally not interchangeable, subject to statutory provisions.(iii) In law, there is no reservation category known as open category. Seats in this category can be filled up by considering all the candidates, irrespective of their backward class or caste or special class, in accordance with merit.(iv) The appropriate course for filling up the open category seats, social reservations category seats and horizontal reservations category seats would be as follows:-(a) First, open category seats should be filled up from amongst all the candidates, irrespective of the social reservation categories to which they may belong, on the basis of their relative merit. In case, some of the candidates selected in open category quota, belong to social reservations, these candidates would not be considered for filling up the social reservation category seats and the seats available therein, which otherwise would have been filled in by these candidates, shall be additionally available for being filled up from amongst the candidates belonging to that social reservation category, in accordance with inter-se merit.(b) In case special reservation for women, physically handicapped etc., is horizontally made within the social reservation categories such as S.C., S.T. and Other Backward Classes, the first step would be to fill up all the seats in the respective social reservation categories by selecting the candidates belonging to each of the respective categories in accordance with inter-se merit. The second step would be to find out as to how many of the candidates selected in each of the social reservations categories would qualify to fill up the seats reserved for special category candidates and if it is found that the candidates already selected also qualify to fill up the quota horizontally reserved within such social reserved category, there would be no need to disturb the list of selected candidates. But, in case it is found that there are no candidates or less number of candidates who would qualify for horizontal reservation category within a particular social reservation category, the void left in the horizontal reservation quota within the same social reservation category, would have to be filled in by selecting the requisite number of candidates belonging to the special reservation category within that social reservation category, in accordance with inter-se merit after deleting the equivalent number of candidates selected to fill up the social reservation category.(c) When horizontal reservation for women is made within open category, and it being not a category of reservation, the seats meant for women in that category, would have to be filled up by selecting women irrespective of their caste, creed or backward class, in accordance with their inter-se merit.(d) Ideally speaking, horizontal reservations meant for special category persons provided for in terms of Article 16(1) or Article 15(3), should be made within the respective social reservation categories.15. In the present case, though the petitioner claims that she had never shown her disinclination to her selection in posts reserved for open (women) category, we find, upon perusal of copy of the online application filled in by her and which is available on record, that she had elected to compete only for the post reserved vertically for N.T.(D) candidates. However, in view of the law laid down by the Apex Court in various judicial pronouncements and discussed in aforestated cases, it is clear that inspite of the petitioner choosing to be selected to a post reserved for N.T.(D.) category, the petitioner still could legitimately stake her claim to post available under the open category and not only that she could do so also to a post horizontally reserved for women in the open category. In the present case, there is no dispute about the fact that from amongst the three short listed women candidates, the petitioner had secured second highest marks after the top scorer, Smt. Priya Naresh Gajbhiye. While Smt. Priya Naresh Gajbhiye, a S.C. candidate, was selected, on the basis of her merit, for one of the two posts reserved for open (women) category, the petitioner though eligible in view of the settled position of law, was not for the other post. The ground given for selecting Smt. Priya Naresh Gajbhiye and rejecting the petitioner was that though Smt. Priya Naresh Gajbhiye belonged to S.C. category, she had opted for open category while the petitioner had not. This ground is not tenable in law as we have seen from the judgments discussed earlier.16. It has been contended on behalf of the respondent Nos.1 to 3 that the horizontal reservation is considered to be compartmentalized reservation, and the law is that claims of candidates falling under “vertical” reservations cannot be considered in the category of “horizontal” reservation, as prescribed in Clause-7 of G.R. dated 25.05.2001. This seems to be the ground on which the original application filed by the petitioner has been dismissed by the Maharashtra Administrative Tribunal, Nagpur. It appears to us that the ground so taken is the result of misinterpretation of Clause-7 of the G.R. dated 25.05.2001. Clause-7 lays down that in a given recruitment year, if women candidates from the respective categories provided by way of horizontal reservation in the category of vertical reservations are not seen to be available for selection, the vacant seats be not transferred to the other social reservations falling under vertical category and they be filled up from amongst the male candidates available in the same category of social reservation, in which horizontal reservation for women belonging to that category is made. Such import of Clause- 7 is clear from the language used therein and also from the context as provided by Clauses- 5 and 6 in which Clause-7 appears. Considered so, it would be clear that what is stated in this Resolution is that while making recruitment to various posts and providing reservations for filling up various posts, it should be ensured that horizontal reservations for women be specifically provided under each of the categories of vertical reservations such as reservations made for S.C., S.T., D.T.(A), N.T. (B)(C)(D), S.B.C., open category etc. and it is in this context that Clause-7 prescribes that if no women candidates are selected in the respective categories reserved for them in a particular social reservation category, the vacant posts be filled up by selecting male candidates, belonging to same social reservation category, as per their merit in the same category. To not leave any doubts in the matter, Clauses 5, 6 and 7 of the G. R. dated 25.05.2001, which is in Marathi, are reproduced as under:-“HINDI”17. Thus, we find that this is a case of misunderstanding of the G.R. dated 25.05.2001 and the resultant wrong application thereof to the fact situation at hand. In this case, there were two posts reserved for women in the open category and they were available to be filled up from amongst the women selected as per their own merit irrespective of the social reservation categories to which they belonged and, therefore, the petitioner who was the second highest scorer amongst the three short listed women candidates, and there being two posts reserved for women in open category, the claim of the petitioner for being selected to the post reserved for open (women) category could not have been ignored. The respondent No.4 being a male candidate could not have competed for the posts meant for women open category candidate as this was not a case of compartmentalized reservation within a social reservation strictly speaking, as rightly submitted by learned counsel for the petitioner, and in view of the settled law discussed earlier. The benefit the G.R. dated 25.05.2001 confers applies to compartmentalized reservations which are provided by reserving seats for special classes such as women, physically challenged etc. within a social reservation made for S.C., S.T. etc. categories. The rule against transferability of the posts reserved for women category to the other social reservations going by the name of vert

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ical reservations as per said G.R., which is also consistent with law discussed earlier, is applicable to a case where within a particular social reservation category, horizontal reservation for such classes as women, physically challenged, freedom fighter, sportsmen etc. is provided and when it is done, such reservation assumes the character of compartmentalized reservation, admitting no candidate, who does not qualify on both counts of reservations, social and special. This was a case wherein horizontal reservation for women candidates was provided in open category, which meant that it was available for all women candidates irrespective of the social reservations to which they belonged and, therefore, claim of the petitioner to compete for open (women) category could not have been rejected and the respondent No.4 could not have been selected against open women category. Both the questions are answered accordingly.18. Having answered the questions in the above referred terms, a further question would arise regarding the position of respondent No.4, who is, now reported to have been already issued an appointment order. It appears to us that, in giving appointment to the respondent No.4 to the post of Assistant Binder, there was no fault of respondent No.4 and the injustice that has been occasioned to the petitioner was primarily because of the misinterpretation of the position of law and misunderstanding of the rules stated in G.R. dated 25.05.2001 on the part of respondent No.2. In such a case, we are of the considered view that this Court would have to balance the competing interests of the petitioner as well as the respondent No.4. It is seen from the reply filed on behalf of the respondent Nos.1 to 3, that respondent No.4, who belongs to N.T.(D) category had applied to be considered in the open category. The petitioner has filed a rejoinder affidavit stating that as per the information obtained by her under the Right to Information Act, though one post was reserved for ex-servicemen category, it was kept vacant as no candidate was available. The petitioner has stated in the rejoinder affidavit that this reservation has not been carried forward by the respondent No.2 and therefore, it is liable to be filled in by offering the said reserved post to the respondent No.4 which would also make the way for appointing the petitioner to the post which would fall vacant in open (women) category. No reply to this additional affidavit has been filed by respondent Nos.1 to 3. We, therefore, take these statements as representing the correct factual position and accordingly, find that equity in the present case could be balanced by also taking care of the interest of the respondent No.4 in the manner suggested by the petitioner.19. Learned counsel for the respondent No.4 has invited our attention to the law laid down by the Apex Court in the case of Madras Institute of Development Studies (Supra), wherein the Apex Court has held that having regard to the principles of estoppel, acquiescence and waiver, no challenge to the selection process could be made by a candidate who has consciously taken part in it. However, in the present case, we must say that these principles would not come into play for the reason that the petitioner has not challenged here the selection process nor has she challenged the G.R. dated 25.05.2001. The petitioner has only questioned the wisdom of the selection authorities in applying, the settled principles of law and the provisions made in the G.R. dated 25.05.2001 to the fact situation of this case.20. In the result, we find that the action of the respondent Nos.1 to 3 and also the impugned judgment and order cannot be sustained in the eye of law and they deserve to be quashed and set aside. The petition is, therefore, allowed.21. The impugned judgment and order are hereby quashed and set aside. The respondent No.2 is directed to consider the claim of the petitioner for the post of Assistant Binder against open (women) category and issue order appointing her to the said post available from open (women) category. We also direct that simultaneously, a fresh appointment order be issued to the respondent No.4 to the post of Assistant Binder in the category of ex-servicemen. Compliance with these directions be made within four months from the date of receipt of the order.Rule accordingly.
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