JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. & ORS.

56Copy pinpoint56. 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 C 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 D 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 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''.

57Copy pinpoint57. 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 iR respect of H

376 SUPREME COURT REPORTS [201 O] 1 S.C.R.

A 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." B

58Copy pinpoint58. 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 C permissible.

59Copy pinpoint59. We have considered ttie 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 0 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% E 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 H reservation relatable to clause ( 1) of Article 16. The

JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 377 & ORS. [SURINDER SINGH NIJJAR, J.] persons selected against this quota will be placed in the A 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 after providing for these horizontal 8 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." c

60Copy pinpoint60. 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 o 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; E

)()()()( )()()()( )()()()( 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 F 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;"

61Copy pinpoint61. The Learned Single Judge whilst interpreting the G 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 in Paragraph 4. The aforesaid provision leaves no matter of doubt that any posts reserved for H

378 SUPREME COURT REPORTS (2010) 1 S.C.R.

A 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.

62Copy pinpoint62. We may also notice here that in view of the aforesaid 8 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 reserved for women candidates from suitable male candidates. This E exercise had already been completed by the appellant-State.

• 63. As noticed earlier, the learned Single Judge despite tat<ing note of the averments made in the supplementary counter affidavit by the State, erroneously issued directions to F 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. G 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 H

JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 379 & ORS. [SURINDER SINGH NIJJAR, J.] 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 putstanding sportsperson. As a matter of fact, there was no carry forward of the 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 c 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.

64Copy pinpoint64. 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. F N.J. Appeals disposed of.