Heard learned counsel for the parties.
These two writ petitions raise a common question of law and were heard together. The counter affidavit filed by learned Standing Counsel in Writ Petition No.38526 of 2010 has been relied upon to defend both the cases on behalf of the State. The petitioners, who belong to OBC category have challenged the process of recruitment on the posts of police constable in pursuance of advertisement no.1 of 2009 published on 19th May, 2010, whereby a total number of 35,000 vacancies were advertised for being filled up through direct recruitment. The controversy in the present writ petitions is confined to the vacancies belonging to OBC category i.e. 9450 posts. Percentage of horizontal reservation in respect of each category was prescribed in the advertisement and filling up of vacancies against the prescribed percentage is set out in the chart as below:- Chart of OBC Category (27% reservation)=9450 vacancies S.No.
Category % of Reservation Vacancies Available
1. Female 20% 1890
2. FF 2% 189
3. ES 5% 472.5
4. HG 5% 472.5 Total 3024 The petitioners belong to OBC category and do not belong to any of the categories for whom percentage of posts is reserved under OBC horizontal category. The petitioners have challenged the selection process firstly on the ground that the award of marks to the candidates has not proceeded on the basis of an equal and equitable principle applicable equally to all and secondly the vacancies of women category candidates have wrongly been filled up in excess i.e. beyond the prescribed percentage of 20% and thirdly the shortfall of candidates in other categories i.e. freedom fighters, ex-serviceman and home guards having 2%, 5% and 5% reservation each respectively have been filled up by the State Government contrary to the overall comparative merit of OBC category candidates. The recruitment process in public services is subject to the tests of Art.14 read with Art.16 of the Constitution of India as well as relevant service rules and the terms and conditions of advertisement. The process of recruitment ordinarily cannot be subjected to judicial review under Art.226 of the Constitution of India unless violation alleged by an aggrieved person is established to be a visible breach of law, which attracts under Art.14 and 16 of the Constitution of India. The mandate of Art.14 of the Constitution of India in its simplest terms is equality before law, which in the process of recruitment would mean an equal opportunity in the matter of consideration on the basis of a common test based on like assessment applicable equally to all. Having regard to these dimensions of equality, the controversy involved in the writ petitions has cropped up in a set of facts summarised as below. The petitioners being OBC category candidates and possessed with the requisite qualifications for appointment on the posts of constable applied in response to the advertisement no.1 of 2009. The recruitment process comprised of physical test in three stages namely physical standard examination, physical efficient examination and medical examination. Having crossed the three stages of physical fitness, the petitioners along with other candidates appeared in the written examination, which comprised of four parts and each part contained 40 questions and each question carried 1.25 marks i.e. 50 marks in each part. In this manner 160 questions in total prescribed equally in four parts i.e. Part-I, Part-II, Part-III and Part-IV carried 200 marks. In the process of holding written examination, a dispute cropped up with respect to six questions, four of which related to Part-II and two questions related to Part-IV. All the six questions were undisputedly found to be wrong so the assessment of comparative merit was confined to 160-6=154 questions and the manner of evaluation, in principle, has led to a controversy before this court. The respondents having declared a total of six questions as wrong adopted a peculiar procedure of assessment i.e. by distributing 50 marks over 36 questions in Part-II and distributing 50 marks over 38 questions in Part-IV. In this manner each question in part II carried 1.38 marks and each question in Part IV carried 1.31 marks; whereas each question in Part I & Part III carried 1.25 marks. Resultantly the marks of each question, when segregated in parts were fixed at variance. This variation of marks per question in each part has led to a disparity in the matter of comparative assessment of marks, which is apparent on the face of record and is mathematically seen tending to affect the right of consideration of the petitioners, a fundamental right protected under Art.14 & 16 of the Constitution of India. The other glaring discrepancy affecting the right of consideration of petitioners lies in the implementation of 20% horizontal reservation for women beyond its permissible limit. A total strength of 20% posts out of 9450 comes to 1890, whereas 2744 posts have been filled up from amongst female candidates, which goes to transgress the merit of the petitioners as OBC category candidates i.e. petitioners. Apart from above, the candidates against various categories of horizontal reservation namely freedom fighters, ex-serviceman and home guards were not available proportionate to the number of vacancies reserved in each category, therefore, 830 vacancies resultantly remained unfilled and such vacancies according to learned counsel for the petitioners ought to have been made available to other OBC category male candidates and 20% of woman candidates should have been deemed satisfied with the appointment of female candidates on 1890 posts and no more. Learned counsel for the petitioners have further asserted that due to non-availability of sufficient number of candidates in other categories i.e. freedom fighter, ex-servicemen and Home Guard the residual vacancies as per prescribed percentage of horizontal reservation could not be filled up from amongst female category candidates for whom the maximum ceiling of 20% is fixed on the total number of OBC category vacancies against 27% quota. The argument advanced by learned counsel for the petitioners not only as regards the assessment of marks to determine comparative merit but the manner in which vacancies have been filled up in OBC category has force and deserves to be considered in the light of relevant law applicable in this behalf. Now coming to the first question regarding assessment of marks it is necessary to understand as to how an anomalous situation has arisen between the candidates, who have appeared in a common test of written examination comprising of four parts i.e. Part-I, Part-II, Part-III and Part-IV. Taking a clue from the distribution of 50 marks over 36 questions in Part-II and distribution of 50 marks over 38 questions in Part-IV, as is the stand taken by State Government in the counter affidavit, the following chart gives a clear picture of the marks awarded per question in each part:- Detail of petitioner's Marks and Questions (Chart-A) Part of Question Paper Total Marks/ Number of questions Marks of one question PART I 50/40 1.25 PART II 50/36 1.3888 PART III 50/40 1.25 PART IV 50/38 1.3157 From the above chart the marks against each question are clearly computed on the basis of mathematical calculation. Now based on the marks admissible against one question as shown in the chart above, a comparative picture of the petitioner with respect to candidates named 'x', 'y' & 'z' may be tested on the basis of equal number of attempted questions with reference to the written examination comprising of four parts i.e. Part-I, II, III & IV. The position of the petitioner when compared on the basis of attempting equal number of 85 questions by placing the variables in different parts, the discrepancy in the following charts can easily be seen:- Detail of petitioner's Marks and Questions (Chart-A) Part of Question Paper No. of Correct question attempted by petitioner Marks per question Marks obtained by petitioner PART I 26 1.25 (50/40) 32.5 PART II 20 1.3888 (50/36) 27.7777 PART III 21 1.25 (50/40) 26.25 PART IV 18 1.3157 (50/38) 23.6842 Total 85 110.2119 Details of marks of candidate 'X' (Chart-B) Written Question Paper Questions attempted by 'X' Marks of per question Marks obtained by 'X' in each part PART I 20 1.25 25 PART II 26 1.3888 36.1088 PART III 15 1.25 18.75 PART IV 24 1.3157 31.5768 Total 85 111.4356 Detail of marks of candidate namely 'Y' (Chart-C) Part of Question Paper No. of Correct question of candidate Y Marks of one question Marks obtained by Candidate X in each part PART I 18 1.25 22.5 PART II 28 1.3888 38.864 PART III 14 1.25 17.5 PART IV 25 1.3157 32.8925 Total 85 111.7565 Detail of marks of candidate namely 'Z' (Chart-D) Part of Question Paper No. of Correct question of candidate Z Marks of one question Marks obtained by Candidate X in each part PART I 16 1.25 20 PART II 30 1.3888 41.64 PART III 14 1.25 17.5 PART IV 25 1.3157 32.8925 Total 85 112.0325 Table showing status of petitioner and aforesaid candidate X, Y, Z are given below:-
S.No.
Candidate Number of attempted question Total marks obtained
1. Petitioner 85 110.2119
2. X 85 111.4356
3. Y 85 111.7565
4. Z 85 112.0325 From the above charts it is clearly derived that four candidates viz. petitioner as compared to X, Y & Z obtain unequal marks against the same number of question i.e. 85, when attempted from different parts, therefore, the discrepancy is established. Chart-A on the basis of same number of questions with respect to the petitioner reflects his percentage of marks as 110.2119, whereas the %age of X, Y & Z stands at variance on the basis of attempting same number of questions. The cut off marks of the last candidate selected in OBC category as per result declared on 19th May, 2010 are set out in the chart below:- Division Male Ex-servicemen dependents of freedom fighters Home guards Female OBC 111.9517 77.9385 76.4692 76.8932 70.0878 If all the vacancies in the respective categories were duly filled up, there would not have been any dispute except in respect of award of marks, which clearly makes out an anomaly as per the procedure adopted by the opposite parties. Therefore, the first grievance of the petitioner as to the evaluation of marks is liable to be redressed. Once it is found that the manner of award of marks in Part-II and IV by the state authorities has resulted into an anomaly, the question is as to how such an anomaly can be resolved. This Court safely observes that the wrong questions in a written examination may either be ignored altogether or equal marks be awarded to all the candidates in respect of wrong questions so that rules of the game stand unchanged during the process of recruitment. For settling the issue, award of marks per question is liable to be maintained as 1.25 marks so far as the selection in question is concerned. Not only that the result declared is anomalous but it has also affected the placement of the petitioners in the merit list, therefore, an exercise equalising the opportunity in terms of determination of comparative merit is bound to be undertaken so as to uphold the majesty of law envisaged under Art.14 and 16 of the Constitution of India. This object in the facts and circumstances of the present case can be achieved by awarding equal marks in respect of wrong questions to all the candidates so that marks against each question are maintained as 1.25. This method alone would balance the merit in an equitable way between all the candidates as compared to the procedure adopted by the respondents i.e. distributing 50 marks over the residual questions in Part-II and IV, which is faulty and has wrongly been approved and implemented. The result of the candidates having appeared in the written examination deserves to be redetermined by distributing 200 marks over 154 questions or by awarding equal marks at the rate of 1.25 to all the candidates including 6 disputed questions. This resolves the issue as regards the award of marks for which an exercise obviously will have to be undertaken by the respondents. In support of this proposition attention of this Court was drawn to the judgment dated 18.7.2014 rendered by Hon'ble Apex Court in Civil Appeal No.6547 of 2014 (Anil Kumar & Ors. v. State of U.P. & Ors.), which envisages some guiding principles as under:- "(a) The posts that have been filled up by successful candidates, as has been apprised to us at the Bar, are 3358 and the candidates who have joined in the said posts and presently working shall not be disturbed.
(b) The U.P. Police Recruitment & Promotion Board, Lucknow shall scrutinise the papers of all the candidates, namely, the persons who had approached the writ court and the candidates who had not approached the writ court and if they have attempted and answered the 18 questions, which were wrongly set out, they will be awarded full marks for said 18 questions.
(c) If a candidate has not answered any erroneous question, the same shall be proportionately reduced. To clarify, the candidate shall only get full marks for the questions answered.
(d) A fresh select list shall be drawn up taking into account the aforesaid marks in respect of 2031 posts which are available in presenti pertaining to the year 2008.
(e) The aforesaid exercise shall completed within a period of three months hence and the successful candidates shall be duly intimated and subsequent action shall be taken by the State." This Court is in respectful agreement with all the propositions except proposition 'c', which leads to an anomalous situation for a valid reason i.e. a candidate having attempted a wrong question on the basis of guess work cannot be held to be entitled to the marks as compared to a candidate, who finding a question to be wrong leaves it unattempted. In both the cases involvement of time factor cannot be ruled out. Therefore, proposition 'c' in the facts and circumstances of the present case is incapable of being applied. The only principle generally applicable in such a situation would be to equalise marks on the total number of questions or to adhere to the pre-determined marks in respect of each question by giving the benefit of wrong questions equally to all. Now coming to other aspects of the matter i.e. implementation of horizontal reservation as against the total strength of 9450 vacancies, there is no dispute as to the calculation of vacancies available against each category, which can be gathered from the chart below as submitted by the petitioner and as submitted by learned Standing Counsel:- F- Female FF-Freedom fighter ES-Ex. Servicemen HG-Home Guard Chart of OBC Category (27% reservation)=9450 vacancies Chart-I S.No.
Category % of Reserve Seats Vacan-cies Available Vacancies Filled Up Unfi-lled vacan-cies Excess
1. F 20 1890 2744 0 854
2. FF 2 189 87 102
3. ES 5 472.5 49 423.5
4. HG 5 472.5 168 304.5 Total 3024 2194 830 Chart-II Category Total vertical reservation (VR) Horizontal reservation (HR) VR-HR SC 7350 2352 7350-2352=4998 ST 700 224 700-224=476 OBC 9450 3024 9450-3024=6426 GEN 17500 (unreserved) 5600 17500-5600=11900 TOTAL 35000 11200 35000-11200=23800 From the figures disclosed in the two charts above, learned counsel for the petitioners argues that filling up of female category vacancies beyond 20% prescribed in horizontal reservation is illegal and contrary to law. It is also submitted that even the shortfall of candidates in other categories i.e. freedom fighter to the extent of 102, ex-serviceman to the extent of 423.5 and home guards to the extent of 304.5, which have been filled up from amongst the female category candidates is impermissible in law. It is also submitted that the total strength of female category in OBC as a whole is not to exceed 1890 candidates so far as the advertisement in question is concerned. In contradiction to the arguments made by learned counsel for the petitioner, learned Standing Counsel relying upon the figures set out in Chart-II reproduced above argues that the right of consideration of the petitioners, who are OBC and do not belong to any category in horizontal reservation, is liable to be tested as against 6426 vacancies, which is rather the actual strength after deduction of the total sum of figures against the categories of horizontal reservation i.e. female, freedom fighter, ex-servicemen and home guards. Since filling up of 6426 candidates from amongst OBC category having regard to comparative merit does not give rise to any dispute, therefore, the case of the petitioners is devoid of any merit and is liable to be rejected. The further submission of Shri Ravi Prakash Srivastava, learned Standing Counsel is to the effect that infact there is no dispute in respect of OBC category vacancies filled up to the extent of 6426 (OBC Male) + 1890 (F) + 87 (Male FF) + 49 (Male ES) + 168 (Male HG)=8620. According to the learned Standing Counsel, the dispute is confined to 830 residual vacancies, which belong to other categories of horizontal reservation and the petitioners not belonging to any of the categories in horizontal reservation cannot raise a claim. From the rival submissions made by learned counsel across the Bar, the following questions emerged for consideration before this Court:-
(a) Whether the method adopted for comparative assessment of merit is legally tenable?
(b) Whether female category vacancies limited to 20% of the total strength can be filled up in excess of the prescribed percentage?
(c) Whether shortfall of vacancies in other horizontal categories of reservation can be diverted to female category alone or the said vacancies are to be filled up on the basis of overall merit of the OBC candidates?
(d) to what relief are the petitioners entitled to if all the issues are established in favour of the petitioners? Coming to question no.1, it is clear from the comparative charts reproduced herein above in the body of judgment and the conclusions drawn that the respondents have adopted a wrong method of evaluation of comparative merit, which is liable to be disapproved on the anvil of Art.14 & 16 of the Constitution of India. Therefore, the overall merit of all the OBC candidates including the categories of horizontal reservation be finalised by awarding 1.25 marks against each question attempted correctly with an equal addition of marks against 6 wrong questions i.e. 7.50 marks to all the candidates. Since the respondents have adopted a faulty method of assessment in the written examination, therefore, the comparative result on the basis of aforesaid method may be redrawn without disturbing the existing appointments subject to the outcome of final merit for the purposes of satisfying appointments already made as well as determination of seniority as per rules. So far as the right of consideration of the petitioners to be restricted to 6426 vacancies is concerned, the argument putforth by learned Standing Counsel though attractive cannot be accepted, inasmuch as, not only the method of evaluation is faulty in the present case but the unfilled vacancies due to shortfall of candidates have also been wrongly diverted to female category candidates beyond the prescribed percentage of reservation i.e. 20%. The petitioners' right of consideration due to the shortfall of candidates in horizontal reservation will extend to {6426+ shortfall of candidates in (FF+ES+HG)} and the total sum of these vacancies is liable to be filled up on the basis of overall merit of OBC category candidates derived on the basis of principle laid down herein above. This proposition is fully supported by the Division Bench judgment passed by this Court in the case of Rajeev Kumar v. State of U.P. in Special Appeal No.1120 of 2010 decided on 03.08.2010 as well as the judgment rendered by Apex Court in the case of Jitendra Kumar Singh & Anr. v. State of U.P. & Ors. reported in (2010) 3 SCC 119. The case of Shri Rajeev Kumar (Supra) related to the same very selection, therefore, is binding on the state authorities even in the matter of present dispute. As far as the case of diversion of vacancies is concerned, learned counsel for the petitioners has invited my attention to paragraph 40, 84 and 85 of the Apex Court judgment, which are reproduced below:- "40. 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).
84. 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; * * *
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;" 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 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.
85. 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 reserved for women candidates from suitable male candidates. This exercise had already been completed by the appellant-State." From the law laid down by Hon'ble Apex Court, it is clear that the vacancies of female category can not be filled up beyond the permissible limit of 20% as prescribed in the advertisement and shortfall of candidates in other OBC horizontal reservation categories are liable to be diverted to the OBC category candidates on the basis of their overall comparative merit drawn on the principle laid down herein above in this judgment. In view of the observations made above, this Court issues the following directions:-
(1) The respondents shall draw a final merit list of OBC category candidates on the basis of evaluation of marks awarding 1.25 marks against each correct question to all the candidates in the written examination and extend the benefit of 7.50 marks admissible against six wrong questions equally to all and accordingly draw the overall merit list of selected candidates for appointment and determination of seniority as per rules, (2) The respondents shall restrict the appointment of female category candidates to the extent of 20% vacancies i.e. 1809 and filling up of vacancies beyond this percentage shall stand dehorse the law and being impermissible is liable to be dispensed with so far as the advertisement in question is concerned. (3) The vacancies remaining unfilled due to shortfall of candidates in other categories of horizontal reservation i.e. freedom fighter, ex-servicemen and home guard may be filled up from amongst OBC candidates as per their overall merit drawn in terms of the direction no.1 issued herein above. In absence of a rule to carry forward the vacancies of horizontal reservation, all the three questions i.e. (a), (b) and (c) formulated above stand answered in terms of the directions issued herein above and the State Government is directed to carry out the above directions within a period of four months. Now coming to the last question, this Court settles the right of consideration of the petitioners as per their placement in the merit list drawn by the respondents in accordance with the direction no.1 issued herein above and the prayer for quashing of the selection as a whole is hereby rejected. In the result, both the writ petitions are partly allowed and a direction in the nature of mandamus is issued to implement the select list of candidates drawn in terms of the directions issued herein above and the whole exercise in this regard shall be undertaken and finalised within a period of four months from the date a certified copy of this Court's order is furnished to the concerned state authorities. In case the names of petitioners find place within the reach of vacancies inclusive of the vacancies available due to the shortfall of candidates in horizontal reservation, the petitioners shall be considered for appointment accordingly and the appointment made, if any, shall be prospective for the purposes of salary, however, seniority shall be protected as per their position in the merit list having regard to the service rules. There shall be no order as to costs.
Dt.23.12.2014 SP/ (Attau Rahman Masoodi,J.)