JUDGMENT Sudhir Agarwal, J.
1. The cardinal question in all these special appeals revolves around the issue of reservation of posts for Other Backward Class, Scheduled Castes, Scheduled Tribes and women candidates and Sportsmen. Although the learned Counsels for the parties have advanced submissions from different angles, raising different issues but with the common objective to get more vacancies available for general candidates, yet the submissions are mostly overlapping and the reference to case law being common, we have heard all these appeals together and are deciding by this common judgment.
2. In all these appeals except Special Appeal No. 592 of 2006, 1285 of 2002 and 910 of 2005, the petitioner-appellants have assailed the judgment dated 22nd May, 2002 of Hon'ble Single Judge (Hon'ble Ashok Bhusan, J.) to the extent the Writ Petition Nos. 25328 of 2001, 26847 of 2001, 36411 of 2001, 28836 of 2001, 26177 of 2001, 34039 of 2001, 4630 of 2001, 32763 of 2001, 27849 of 2001, 27060 of 2001, 29069 of 2001 and 47528 of 2002 have been dismissed whereby the petitioner appellants were seeking a mandamus directing the respondents to sent them for training to the post of Sub-Inspector. In some of the writ petitions relief for quashing of the select list was also sought but it has also been declined.
3. In Special Appeal No. 592 of 2006 the respondent-appellant has assailed the aforesaid judgment assailing it only to the extent the Hon'ble Single Judge has issued a mandamus to the respondent-appellants to fill up vacancies against 2% sports quota from the aforesaid selection itself.
4. Special Appeal No. 1285 of 2002 filed by petitioner-respondent arises out of the judgment dated 1.10.2002 passed Hon'ble Single Judge (Hon'ble R.K. Agarwal, J) dismissing writ petition No. 47528 of 2002 following the judgment dated 22nd May, 2002 of Hon'ble Ashok Bhusan, J. in writ petition No. 25326 of 2001 and Ors. connected matters (Supra).
5. In Special Appeal No. 910 of 2005, die petitioner-respondent has assailed the judgment dated 19th July, 2005 of Hon'ble Single Judge (Hon'ble Sunil Ambwani, J.) dismissing writ petition No. 29383 of 2001 following judgment dated 22nd May, 2002 of Hon'ble Ashok Bhusan, J. (Supra).
6. We have heard M/s V.K.S. Chaudhary, Ravi Kiran Jain, Ashok Khare, Senior Advocates, P.S. Baghel, Advocate, S.M.A. Kazmi, Advocate General assisted by C.B.Yadav, Chief Standing Counsel and Sanjai Goswami, Standing Counsel.
FACTS
7. In brief, the common undisputed facts, are that the U.P. Police Headquarter, Allahabad published an advertisement in various newspapers including daily newspaper Rashtriya Sahara dated 4.5.1999 for direct recruitment of 1634 posts of Sub Inspectors in Civil Police (in short S.I.C.P.) and Platoon Commander in PAC (in short 'P.C.'). In all, 1231 posts for male Sub Inspectors, 148 posts for female Sub Inspectors and 255 posts for Platoon Commanders in PAC were advertised. It further provided that 2% posts are reserved for outstanding sportsmen, but for their recruitment vacancies would be separately advertised. The Government also reserved with itself a right to keep any post vacant or defer appointment. The minimum educational qualification is Graduate but for Ex-serviceman it is Intermediate or equivalent thereto. The minimum age for recruitment is 21 years and the maximum age is 25 years on the cut off date, i.e., 1.1.1999. Relaxation of age for various category of candidates in accordance with the Government Orders (hereinafter referred to as 'G.O.') issued from time to time was also admissible. This also included five years relaxation in age to Scheduled Castes, Scheduled Tribes, Other Backward Class and dependents of Freedom Fighters. In respect to Ex-servicemen it provided that the period of service rendered in Army shall be reduced for computing their age, i.e., after deducting the period of service they have rendered in Army as well as three years more, if the age of such applicants is not more than 25 years as on 1.1.1999, they would be deemed to be eligible. Reservation of vacancies as per relevant provisions was also admissible. Procedure for selection included a preliminary written test in the nature of qualifying examination, consisting of 300 maximum marks and the candidate securing 50% or more would be successful and entitled to participate in further tests. The next step is a Physical Test consisting of 100 marks wherein a candidate has to secure at least 50% and more, which is also in the nature of qualifying test not to be included for determination of final merit. The candidate who qualify in preliminary written test and physical test would appear in main written test consisting of 600 marks having two papers, i.e., General Hindi, General Knowledge and Mental Aptitude Test. A candidate, who secure 40% and above, would be successful in written test and thereafter would appear for interview of 75 marks. The final merit list, on the basis of the marks secured in main written test and interview would be prepared and thereafter the candidates selected are to be sent for training. All the petitioners-appellants, who applied pursuant to the aforesaid advertisement, had reached the stage of interview.
8. It appears that more than fifty thousands candidates, pursuant to the aforesaid advertisement, applied, and appeared in preliminary written test held on 6.2.2000. The result was declared on 22.9.2000 wherein only 7325 candidates were found successful. Physical test was conducted from 29.10.2000 to 6.11.2000 wherein only 1454 candidates were found successful. The main written test was held on 29.4.2001 wherein 1178 candidates were declared successful and after holding interview between 18.6.2001 to 1.7.2001, the final result was declared on 6.7.2001 declaring only 1006 candidates successful. The number of persons, who were selected in different categories finally and have been sent for training, are as under:
10. In none of the writ petitions any selected candidate was impleaded though in some, the select list was sought to be quashed. In writ petition No. 34039 of 2001, a ground has been taken questioning vires of Section 3(6) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (in short "Act of 1994") but in the relief, there is no prayer for declaring it ultra vires. Similarly, the Government Order dated 26.2.1999 providing women reservation has also been said to be ultra vires in the grounds but no such relief has been sought.
11. The State Government has filed a detailed counter affidavit in writ petition No. 26177 of 2001 Jai Prakash Sharma and 40 Ors. v. State of U.P. and Ors. wherefrom Special Appeals No. 699 of 2002, 576 of 2006, 591 of 2006 and (452) of 2002 have been preferred and the said counter affidavit is said to have been read on behalf of State Government in all the cases since all the writ petitions were heard together and decided by a common judgment of Hon'ble Ashok Bhusan, J.
12. The respondents in the counter affidavit have explained that advertisement was published on 3.5.1999 pursuant to the requisition dated 1.5.1999 sent by the Police Head Quarter advertising 1231 male S.I. C.P., 148 female S.I. C.P. and 255 Platoon Commanders. Total 53780 application forms were received in various Districts throughout the State whereafter a qualifying preliminary' test was conducted on 6.2.2000 and the result was declared on 22.9.2000. 7325 candidates were declared successful who appeared in physical test held between 29.10.2000 to 6.11.2000. 1454 candidates found successful in physical test appeared in the main written test held on 29.4.2001. A candidate was required to secure at least 40% marks in each subject in the main written test to qualify. The written test consists of 2 papers, one, General Hindi, Language and Essay of 200 marks and second, General Knowledge and Mental Aptitude Test of 400 marks. Only 1178 candidates in all could qualify main written test who appeared in interview held between 18.6.2001 to 1.7.2001. It has also explained that vide Government Order dated 3.2.1999, 2956 posts of S.I.C.P. were sanctioned out of which 50% were to be filled in by direct recruitment and 50% by promotion. Hence, 1478 posts came to be filled in by direct recruitment out of which 99 were filled in under the Dying in Harness rules and there remains to be 1379 posts which were advertised in the aforesaid selection. Since there was a reservation of 2% vacancies for sports persons, it was decided to make recruitment of sports persons separately and so clearly mentioned in the advertisement that for sports quota recruitment shall be held separately by issuing a separate advertisement. Therefore, as a matter of fact actual recruitment was made only for 1350 posts of S.I.C.P. and 255 posts of Platoon Commanders, P.A.C. The break-up of successful candidates is same as given above. Repelling allegations that candidates who did not qualify in the written test have been finally selected, it is said that three roll Nos. 063357, 0480612 and 060007 had not qualified in written test and were not included in the select list but there was a printing mistake in the news papers and the correct roll numbers were 0600057, 0490612 and 0600007 who were actually selected and only they have been sent for training. It is also stated that 183 general candidate though passed in the main written test but after interview could not be selected for the reason that on the basis of merit position 163 O.B.C., 19 S.C. and I ST. candidates were selected against unreserved seats.
CONTENTIONS IN BRIEF
13. The questions basically raised in all these appeals relate to recruitment of reserve category candidates qua unreserved vacancies. In some of the cases the manner in which the respondents have implemented reservation for women and sportsmen is also questioned.
14. Sri PS. Baghel, Advocate, learned Counsel for the appellants advanced his submissions in Special Appeals No. 764 of 2002, 735 of 2002 and 910 of 2005 and broadly contended:
(i) The G.O. dated 26.2.1999 providing women reservation says that the unfilled vacancies shall not be carried forward. It is said that 67 posts reserved for women in general category but the number of successful candidates being less (15 to be more precise), remaining 52 vacancies have been carried forward which is in violation of the said G.O. The women reservation is horizontal and applicable to all categories. It is referable to Article 15(3) of the Constitution and not Article 16(4) hence the unfilled vacancies could not have been carried forward even otherwise and ought to have been filled in from the general male candidates.
(ii) Reservation of vacancies for women is violative of Article 16(2) of the Constitution of India.
(iii) Exclusion of 29 vacancies for sports quota was illegal and that should have been included in the total number of vacancies available for general and other category candidates, resulting in 15 more posts should be filled in from general candidates.
(iv) A number of reserved category candidates who have secured marks more than the last selected general candidate have been adjusted against the vacancies available for general candidates which in effect has resulted in recruitment of a very large number of reserved category candidates. This is illegal and unconstitutional. Section 3(6) of the Act of 1994 does not permit such reserved candidate to be adjusted against general vacancy who has applied as reserved category candidate. In the alternative it is submitted that at least such reserved category candidate who has appeared availing relaxation of age available to reserved category candidates cannot be said to have competed at par in open competition with general category candidates and, therefore, he cannot be adjusted against the vacancy meant for general candidate. Once relaxation or concession provided under Section 8 of Act of 1994, has been availed, such reserve category candidate cannot be adjusted against unreserved vacancy under Section 3(6) of the Act (para 5, P.G.I. of Medical and Research, Chandigarh v. K.L. Narsimhan ). It is further contended that the Hon'ble Single Judge erred in law in holding that the aforesaid observation is not binding in view of the larger Bench judgment in P.G.I., of Medical Education and Research, Chandigarh and Ors. v. Faculty Association the review was allowed and the judgment under appeal was set aside. It is contended, that initially three appeals were decided by the Apex Court by a common judgment in P.G.I. v. K.L. Narsimhan (Supra) but review was filed only in one appeal which was allowed and the judgment was set aside. However, still the judgment remain operative in other two appeals and therefore to ignore the binding nature of law laid down in para 5, P.G.I. v. K.L. Narsimhan (Supra) is not correct since the judgment in other appeals still hold field and cannot be ignored. He further argued that the Apex Court judgment in P.G.I. v. K.L. Narsimhan (Supra) has been referred to subsequently also in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. 1997(7) SCC 120, Bharat Vidyapeeth and Ors. v. State of Maharastra and Anr. and State of Madhya Pradesh and Ors. v. Gopal D. Tirpathi and Ors. which show that the aforesaid judgment is still operative and a binding precedent. In Indra Sawhney v. Union of India the Apex Court did not lay down a law that reserve category candidates securing higher marks than the general category candidates have to be selected against unreserved seats and reliance placed thereon by the Hon'ble Single Judge is erroneous. He contended that neither there was any such issue raised nor argued nor decided and the observations, if any, in the judgment in Indra Sawhney (Supra) are only in reference to the provision contained in the Government of India's office memorandum under consideration therein without there being any lis on the specific issue as to whether adjustment of reserve category candidates against unreserved vacancies is valid and if so, to what extent and in what manner. Extending horizon of his arguments, referring to the statement of Dr. B.R. Ambedkar in Constituent Assembly Debate Vol. 7 page 700/701 and Vol. 10-12 page 890, he urged that the founding fathers of the Constitution intended to provide reservation only to ensure adequate representation to such class of persons who were inadequately represented in service. The intention was to keep such reservation to minority of the seats i.e. a small number of seats. On the contrary, allowing reservation to the extent of 50% and thereafter by further permitting reserve category candidates to be selected against unreserved posts, the recruitment of reserved category candidates has exceeded and gone beyond 60% to 75% and sometimes even more which is unconstitutional and amounts to a fraud on the Constitution. He vehemently contended that such a situation amounts to making recruitment of reserve category candidates to majority of seats depriving right of equality to unreserved category candidates and result in negative discrimination which was neither the intention of the framers of the Constitution nor is otherwise in accordance with the Constitutional scheme and spirit as interpreted by the Courts from time and again.
(v) Many candidates failed in the main written examination have been shown in the final select list which demonstrate that the entire selection is full of irregularities and, is liable to be set-aside.
15. Sri V.K.S. Chaudhary, Senior Advocate in Special Appeal No. 699 of 2002 urged that the words "open competition" under Section 3(6) of Act of 1994 means the persons who are allowed to compete at par in all respects without having any advantage including that of age, fee etc. He contended that "open competition" means "no handicappedness" and "no headstart" In order to apply Section 3(6) of Act of 1994, three things have to be seen i.e. (i) the candidate is selected on the basis of merit (ii) in an open competition and (iii) amongst the general candidates. Referring to Section 8 of Act of 1994, he submits when a reserve category candidate appear having availed the benefit of age relaxation, he stands in an advantageous position with reference to experience, academic qualification which he may attain due to advantage of age relaxation etc. and therefore is more matured. He is not identically placed with general category candidates and thus it cannot be said to be an open competition where everything is at par. He also contended that the observations of Apex Court in Indra Sawhney (Supra) on page 514, 589 and 566 of AIR would show that it was considering Office Memorandum dated 13.8.1990 and 25.9.1991 of the Government of India which contains the words "on the same standards prescribed for the general candidates" though the words used in Section 3(6) of 1994 Act are not same and pan materia. Relying on O.M. Bhargava (Dead) by Lrs. v. Satyavati Bhargava (Mrs,) and Ors. , he argued that reserve category candidates who appear with the benefit of relaxation in age and fee, steal a march over their counterparts belonging to general category and therefore cannot be said to have competed in an open competition. He also refers to P.G.I. v. K.L. Narsimhan (Supra) (Para 5), P.G.I. v. Faculty Association (Supra) (para 26), a Single Judge decision in Dinesh Kumar Shukla v. State of U.P. and Anr. 2004(4) AWC 3487 para 34 and 40 and contended that meaning of "open competition" is "same level" and "same standard". Relaxation in fee may not be material for the said purpose but relaxation in age would make a substantial difference in the equalness of open competition and the relevant factors applicable thereto. To sum up, he said that under Section 3(6) of Act if 1994, "open competition" means when general and reserve category candidates are equally placed in all respect and not otherwise. He further contended that the observation of Apex Court in Indra Sawhney (Supra) are not to be read as statute and cited 1900-1993 of All. ER (Re Print) page 1 (para 7), Union of India v. Chajju Ram (Dead) by LRs. And Ors. , Ambica Quarry Works etc. v. State of Gujrat and Ors. , Kesar Devi (Smt.) v. Union of India and Ors. and Seervai's Constitution, VI Edition Vol. 2 page XCV.
16. Sri R.K. Jain, Senior Advocate in Special Appeal No. 337 of 2005 in general adopted the submissions of Sri Baghel, Advocate and Sri Chaudhary, Senior Advocate and further argued that the manner in which Section 3(6) of Act of 1994 has been interpreted by the Hon'ble Single Judge, it would render the said provision ultra vires of Article 16(1) of the Constitution of India. It is contended that Article 15(4) is for advancement of such classes who are socially and educationally backward and provision can be made for their advancement but to provide advantage under Article 16(4), backward class must be such as not adequately represented in service. In case a person belong to reserve category, opt for consideration of his candidature against reserve seat, and submit only one application availing advantages available to reserve category candidate, namely relaxation in fee, age, etc., it would mean that he has opted for consideration of his case not for open competition hut only against the reserve seat and amongst the same category of candidates namely, Reserve, and therefore application of Section 3(6) of the Act of 1994 in such case would be erroneous and would result in treating unequal as equal. He also contended that to attract Article 16(4) of the Constitution of India it has to be seen that the backward class is not adequately represented which means arithmetical calculation. Since the number of candidates who have been recruited and belong to reserve category show that almost 1/3 of the unreserved vacancies are taken by them, it means that they are not inadequately represented and their selection in such a large number should disentitle them benefit of reservation under Article 16(4) of the Constitution. He tried to pursue us to direct the Government to reconsider the entire scheme of reservation and expediency of its continuance with reference to such category in the changed and existing circumstances.
17. Learned Advocate General, seriously opposing all the appeals except Special Appeal No. 592 of 2006 supported judgments under appeal and contended that the scheme under Articles 14, 15, 16 and 38 of the Constitution provide a Holistic view for equality to eradicate the pre-existing discrimination, opportunity in public employment to those who are not properly represented on account of their social and educational backwardness and similar other reasons; and, to eliminate inequality in status, facility, privilege etc. Reservation is a form and mode to achieve these objectives. He further contended that concessions, relaxations, etc. are provided to reserve category candidates to enable them to compete and seek benefit of reservation. It is in aid and assistance of reservation. These concessions and relaxations place them at par with general category candidates and it is only thereafter merit of all the candidates can be assessed without any further discrimination or benefit amongst all the candidates irrespective of their category and therefore, candidates of reserve category, who have secured higher marks on account of their merit in such selection are entitled to compete and be selected against general seats i.e. unreserved seats and they cannot be confined to the reserve seats only. He further contended that Sections 3(1) & (6) and Section 8 of Act of 1994 are interconnected. The competition starts only when the actual merit test commence. The words "open competition" under Section 3(6) of Act of 1994 means that the test for assessment of all persons is same and at par, without any distinction or discrimination in any manner, whatsoever. He also contended that the benefit of fee or age relaxation availed by a reserve category candidate while submitting application form to register his claim for recruitment, does not result in commencement of "open competition" amongst the various candidates but the competition commences only when different tests are conducted by the authorities to judge the inter se merit of the candidates and therefore, relaxation in the matter of fee and age would not have the effect of outsourcing reserve category candidates from open competition. Referring to various dictionaries for meaning of the word "open competition", he contended that it means "a qualifying test" i.e. when the concept of marking is introduced and not any anterior stage. He also placed reliance on Indra Sawhney (Supra) and in particular to para 22(2) (M), 58 & 94 A of the judgment reported in AIR, and Union of India and Anr. v. Satya Prakash and Ors. 2006 (4) SCC 524 and said that such an adjustment of reserve category candidate against general seats has been upheld by the Apex Court.
18. The learned Advocate General in support of Special Appeal No. 592 of 2006 contended that the Hon'ble Single Judge has erred by directing the respondent-appellants to fill up the vacancies which were excluded for 2% sports quota from the aforesaid selection and contended, since it was clearly mentioned in the advertisement that the vacancies under sports quota shall be filled in separately, the Hon'ble Single Judge was not justified in directing for filling up of these vacancies from this very selection.
Issues
19. The rival contentions argued at great length by the learned Counsel for the parties in our view give rise to the following issues:
1. What is the extent of selection of a reserve category candidate against unreserved seats and in what circumstances he can be considered against unreserved vacancies besides reserve seats. The relevant factors, shades and nuiances for such adjustment also need to be identified, if any
2. Whether Section 3(6) of Act of 1994 would apply where a candidate of reserve category though has availed relaxation meant for reserve category candidates namely fee, and age but in all other respect, in the selection test, has competed with general category candidates and has secured more marks than the last selected general category candidate. In other words whether relaxation in age and fee would deprive and outsource him from competing against an unreserved seat in an open competition with general candidates.
3. Whether selection of reserve category candidates against reserved and unreserved vacancies constituting more than 50% is unconstitutional or otherwise contrary to law.
4. Whether reservation of seats for women is violative of Article 16(2) of the constitution of India.
5. Whether seats reserved for women can be carried forward in case suitable candidates are not available or the reservation being horizontal and applicable to all categories, the unfilled vacancies are to be filled by suitable male candidates.
6. Whether keeping 2% sports quota separate from the selection in question is illegal.
7. Whether selection in question is otherwise vitiated on account of any alleged irregularity or bungling.
20. Before delving into the various issues cropped up in these appeals, it would be useful to have a glance over the constitutional and statutory provisions pertaining to reservation with particular reference to the State of U.P.
PROVISIONS FOR RESERVATION IN THE CONSTITUTION
21. About 56 years ago, rejoicing independence achieved after centuries, the people of India gave to themselves a written constitution with the objective of securing to its citizens justice, liberty, equality and fraternity. The methodology for achieving the aforesaid goal was resolved in detailed provisions made in the Constitution, which included Parts-Ill and IV. No doubt, technically the Constituent Assembly elected on the basis of a limited franchise, but it was representative of all sections of the society having the statesman of the highest order, which this country has not seen since thereafter. They belong to various fields, namely, law, politics, education, business and other public life who after a very thorough and prudent deliberations gave to us the aforesaid written Constitution. Being the man of wisdom having experience of real life of the country, conscious of the historical facts, perceiving the difficulty of uniting the egalitarian society consisting of persons belonging to various religions communities, castes, races, languages, beliefs and practices, they attempted to provide ways and means in such a different way so that every person gets an equal treatment in similarly placed circumstances. It cannot be said that the framers of the Constitution were not aware of the large scale illusion, ignorance and social disorders etc. While considering the larger issues in these appeals we cannot forget that the doctrine of equality is not an abstract doctrine. It has diverse facets. It is a dynamic and evolving concept. The right of equality enshrined under Article 14 of the Constitution speaks of equality before the law as well as equal protection of the laws. Most of the Constitutions in the World speak either equality before, the law or the equal protection of laws, but very few, of both. Apparently, two concepts although may have something in common but in the content and sweep cannot be said to have same concepts. The concept of equality before the law contemplates reduction of inequalities in status, facilities, opportunities and income etc. not only amongst individuals but also group of individuals and to the people. It also extends to secure adequate means of livelihood to its citizens, promote educational and economic interests of the weaker sections of the people, protection from social injustice and all kinds of exploitation. Articles 15 to 18 and certain Articles of Part-IV like Article 38, 39, 39A, 41 and 46 of the Constitution also illustrate concept of equality before the law. Article 15(1) while declaring in positive terms that the State shall not discriminate against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them, at the same time with a view to ameliorate the conditions of women and children makes provision under Clause (3) that nothing in the said Article shall prevent the State from making any special provision for women and children. Similarly, Clause (4) of Article 15 provides that the said Article shall not prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Casts and Scheduled Tribes.
22. Public employment admittedly provide certain status and power, may be on account of the experience we have in the pre independence century, but the fact remains that public 'employment has always been treated to be a repository of State Power besides the means of livelihood. This importance was realized by the framers of the Constitution as is apparent from the fact that a separate provision, i.e., Article 16 was made ensuring equal opportunity in the matter of public employment. While Clause (1) of Article 16 in positive terms enshrines equal opportunity for all citizens in matters relating to employment or appointment to any office under the State, simultaneously, Clause (4) provides that nothing in this Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented. Clause (4-A) inserted by 77 Amendment, 1995, with effect from 17.6.1995 further provides that nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion with consequential seniority, to any class or classes of posts in the service under the State in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State. However Article 335 restrict reservation with the caution that it should not adversely affect efficiency in administration. It would be appropriate to reproduce Article 14, 16 and 335 of the Constitution:
14. Equality before law-The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India?
16. Equality of opportunity in matters of public employment- (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office (under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
[(4-A) Nothing in this article shall prevent the State from making any provision for reservation (in matters or promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State. J [(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent, reservation on total number of vacancies of that year.] (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
335. Claims of Scheduled Castes and Scheduled Tribes to services and posts- The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
[Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.] Statutory provisions for Reservation In State of U.P. A-retrospect
23. Britishers were successful in ruling this vast country for decades by following the well know trick "divide and rule". The objective was advanced by them in the form of communal representation on the political front. The seeds of this division sought to be continued in the field of public employment by identifying masses on caste basis and providing a kind of reservation in one or the other way to the class of masses, which were ex-facie extremely downtrodden, poor and virtually unrepresented in public employment. The Britishers though shielded their motive behind a laudable objective of upliftment but the very idea was division amongst the various classes. However, in independent India we thought to carry on with the laudable objective and means to achieve it, leaving the other part with the clear intention that it would continue for a limited duration so that the hidden motive, as conceived by rulers in pre-independence era, may not persist. Unfortunately, the duration is going on extension and the apprehension of our forefathers at the time of framing of the Constitution is proving itself on account of frequent class clashes we have witnessed in the recent past. To trace out the history of reservation, for the purpose of present case, we need not go too far and restrict ourselves to the stage commencing from the period, in vicinity of, independence. Various GOs. on reservation issued from time to time are compiled by the State Government in the 'Manual of Government Orders on Reservation' and we have taken these Orders therefrom. On 24.7.1947, a G.O. was issued providing representation to the members of depressed classes to the extent of 10% in direct recruitment. The aforesaid reservation based on the data available with the then Government pursuant to 1931 census, the last census, which was prepared taking into account social and other conditions of the people in India and their number. After achieving independence on 15.8.1947, the Constituent Assembly formed a Committee under the Chairmanship of Dr. B.R. Ambedkar to consider shape of our constitution. Constituent Assembly Debate, Vol-7 page 672-704, shows that Dr. Ambedkar incorporated provisions for reservation in service pursuant to 1932 Puna Act which was accepted by all the parties. On 26.1.1550 the people of India gave to themselves 'Constitution', which contain provisions for reservation, which we have already referred above. On 9th June, 1950 a G.O. was issued stating that preference to backward classes shall be extended in order to recruit them in adequate number in public service. Though under G.O. dated 24.7.1947, reservation was provided to "depressed classes", in the subsequent G.O. dated 9.6.1950 they were termed "Backward Classes" since Article 16(4) of the Constitution provides reservation for Backward Class of Citizens. Thus all the depressed classes were treated to be enbloc backward class and were given reservation under the said provision. Subsequently on 26.8.1950 the G.O. provided 10% reservation for scheduled castes with further caution that due attention shall be paid to the existing provisions of Article 16(4) and 335 of the Constitution of India. By first Constitution Amendment of 1951, Clause (4) inserted in Article 15 empowering "the State" to make special provision for advancement of any "socially and educationally backward classes of citizens" and for "scheduled castes and scheduled tribes".
24. On 29.1.1952, the Central Government constituted a Commission popularly known as "Kaka Kalelkar Commission" under Article 340 of the Constitution which was to "investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties which they labour and to make recommendations as to the steps that should be taken by the Union any State to remove difficulties and to improve their conditions". The Commission for its study have to rely upon 1931 census since subsequent census of 1941 and 1951 did not count population on social or caste basis or the national literacy rate. The Commission in general made observations based on 1931 census and said that 70% of population depends on agriculture, 10% of villagers have no land, 85% have no economical holdings, only 5% are self sufficient and surplus, 10% are normally self sufficient having no surplus, 50% living hand to mouth and 35% constitute cottage industry works etc. The Commission proceeded to count the population of backward class by assuming 25% increase in every decade and prepared a list of 120 castes as backward communities, and, based on 1931 census, calculated their approximate population in 1951. The aforesaid list prepared on caste basis though approved by majority members of the Commission but while submitting its report the Chairman of the Commission had a second thought and wrote a letter to the President of India with a request for not accepting the report and thereafter the said report remain un-acted upon.
25. The G.O. dated 26.11.1952 provided five years relaxation in age to Scheduled Caste candidates in non gazetted service. The G.O. dated 22.9.1953 superseded earlier Government Order dated 26.8.1950 stating that population of S.C. & S.T. in 1951 census is 18% in Uttar Pradesh and therefore Scheduled Caste candidates shall be provided 18% reservation in Government service in direct recruitment. G.O. dated 22.2.1956 provided for carry forward of reserve vacancies for 2 years in modification of the G.O. dated 22.9.1953. By GO. dated 6.1.1958, State Government extended reservation to Scheduled Caste candidates in all services where recruitment is by competitive examination. It appears that the Government appointed a committee to examine the adequacy of representation of Scheduled Castes in public services and the committee in its report deprecated and said that representation of scheduled castes is highly unsatisfactory being much below 18% and these facts were acknowledged by the State Government vide G.O. dated 30.12.1963 and 18.2.1964. By GO. dated 7.3.1964, provision pertaining to carry forward as contained in G.O. dated 22.2.1956 was amended providing carry forward of vacancies up to 45%. The State of U.P. however on 17.9.1958 issued a G.O. containing list of Other Backward Classes. The G.O. dated 3.6.1964 extended percentage of reservation in clerical and ministerial service as 25% and 45% respectively till it reaches 18% in the cadre. The G.O. dated 15.3.1965 introduced 25 point roster for Scheduled Caste candidates. However G.O. dated 29.9.1965 clarified that there shall be no reservation in scientific and research services. The G.O. dated 30.9.1965 clarified that Scheduled Caste candidates even if qualify on merit, but shall be counted in 18% quota for the purpose of Article 16(4) of the Constitution. G.O. dated 30.9.1966 provided that minimum standard for selection should be same for scheduled castes and for general candidates. By G.O. dated 12.2.1970 reservation for scheduled castes was extended to short term and leave vacancies in Class-Ill nontechnical posts and for all Class-IV posts. On 25.4.1970 the G.O. for the first time provided 2% reservation for Scheduled Tribes. The G.O. dated 8.3.1973 provided reservation of Scheduled Castes and Scheduled Tribes in promotion also where criteria for promotion is selection namely, where promotion is not automatic but based on selection on merit. The G.O. dated 25.5.1973 superseded G.O. dated 29.9.1965 and reservation for Scheduled Caste and Scheduled Tribe was also introduced in technical services. G.O. dated 29.11.1973 provided special drive for recruitment of reserve category candidates by providing 45% reservation to Scheduled Castes in all non-technical posts which are outside the purview of Public Service Commission and 5% for Scheduled Tribes in Class-III and Class-IV posts. The G.O. dated 31.12.1973 provided reservation in ad hoc promotion where criteria is seniority subject to rejection of unfit. The G.O. dated 28.3.1974 extended reservation in promotion even where criteria is seniority subject to rejection of unfit i.e. non selection posts. G.O. dated 2.7.1974 provided 18% reservation for Scheduled Castes and 2% reservation for Scheduled Tribes in teaching posts in universities. It appears that the Government again examined the effect of the reservation made available in the last more than 25 years and in the G.O. dated 7.11.1974 stated that representation of scheduled caste candidates in class-III service is only 8% while in class-IV it is about 12% and is much less in other categories. On 2.12.1974 a G.O. was issued providing reservation in Public Sector Corporations Companies and Undertakings of the State Government i.e. those wholly owned and controlled by the State Government. G.O. dated 5.12.1974 provided 18% reservation for Scheduled Castes and 2% reservation for Scheduled Tribes in engineering colleges and universities in teaching and non-teaching services. The G.O. dated 11.11.1975 provided for vertical and horizontal reservation to various categories namely 18% for Scheduled Castes, 2% for Scheduled Tribes, 2% for Physically Handicapped persons, 10% for Ex-Army Personnel and 10% for Political Sufferers in Class-I posts. The G.O. dated 8.4.1976 provided reservation in selection grade also. On 19.5.1976, the G.O. provided reservation in teaching and non-teaching service in Government aided technical education institutes receiving grant in aid. On 30.9.1976 the University Grants Commission laid down certain guidelines for recruitment of Scheduled Castes and Scheduled Tribes in teaching staff of universities and the State Government by G.O. dated 11.10.1976 applied the aforesaid U.G.C. recommendations to universities and degree colleges in State of U.P. The State Government also constituted a Commission known as "Sathi Commission" for identifying most backward class of citizens. The Commission consisted of Sri Chhedi Lal Sathi, Chairman, and Sitaram Nishad and Sri Malkhan Singh Saini as Members. The "Sathi Commission" submitted its report on 17.5.1977 and on many aspects it followed the pattern, particularly for calculating most backward's population, as was dealt with by Kalelkar Commission, and based on 1931 census, assuming an average increase of 25% per decade, estimated their population as 51.4%. For the first time the State Government by G.O. dated 20.8.1977 extended 15% reservation in direct recruitment to backward class candidates referring to the list of Other Backward Class (in short 'O.B.C.') as was already published by G.O. dated 17.9.1958. The G.O. dated 14.11.1977 provided reservation in all voluntary organizations receiving grant from the State. The G.O. dated 13.1.1978 extended reservation of OBC in promotions also. The State Government by G.O. dated 17.1.1978 informs that the representation of scheduled castes in class I and 11 posts is 3.1% and 3.6% respectively. G.O. dated 23.1.1978 extended reservation for O.B.Cs. in Public Sector Undertakings and G.O. dated 17.2.1978 extended reservation to all teaching posts in medical colleges, G.O. dated 22.2.1978 extended reservation in local bodies, G.O. dated 29.4.1978 extended reservation in Zila Parishads and G.O. dated 12.7.1978 to Non-Government aided Higher Secondary Colleges.
26. The validity of the G.O. dated 20.8.1977 providing 15% reservation to O.B.Cs. came up for consideration before a Division Bench in Chhoteylal Pandcy and Ors. v. State of U.P. and Anr. and vide judgment dated 2.2.1979, a Division Bench of this Court allowed the writ petition, and quashed the Government Order dated 20.8.1977 in so far as it provides reservation to O.B.Cs. This Court also condemned "Sathi Commission" report for its perfunctory and casual investigation and approach. The State Government preferred appeal before the Apex Court and on 5.3.1979, judgment of this Court in Chhotey Lal Pandey (Supra) was stayed. Consequently G.O. 23.7.1979 was issued directing to continue reservation of O.B.C. in Government Services. In the meantime the Central Government constituted another Commission under Article 340 of the Constitution namely, "Mandal Commission" headed by Sri B.P. Mandal, Chairman by its notification dated 20.12.1978, which submitted report on 12.12.1980 making various recommendations for advancement of O.B.Cs. Some persons raised issue was voice of posting the Scheduled Castes and Scheduled Tribes officers on important posts including posts in All India and Provincial Administrative Services namely I.A.S., I.P.S. and P.C.S. but G.O. dated 12.5.1980 provided that posting on important posts should be done on the basis of merit alone. The G.O. dated 19.5.1980 thereafter provided reservation in autonomous bodies receiving grant namely, Pant College of Science and Technology, Pantnagar, Roorki University, Roorki, H.B.T.I. Kanpur, Kamla Nehru engineering Institute, Sultanpur, M.M.M. Engineering College, Gorakhpur, Motilal Nehru Engineering College, Allahabad and Dayalbagh Engineering College, Agra. The G.O. dated 19.2.1981 provided that reserve category candidates qualifying on merit shall be taken irrespective of their quota and to that extent modified earlier G.O. dated 29/30.9.1965. The recommendations of Mandal Commission in the meanwhile were in icebox. When the Special Leave Petition filed by the State Government before the Apex Court came up for hearing in 1987, a statement was made on behalf of State of U.P., that, since a new Commission (Mandal Commission) has submitted its report therefore, the Government may take action in the light of that report and the Special Leave Petition was thus dismissed by the Apex Court vide order dated 11.8.1987 , State of U.P. v. Chhotey Lal Pandey and Ors. In June, 1989, U.P. Ordinance No. 11 of 1989 was promulgated providing 15% reservation to O.B.Cs. on the basis of the list of the O.B.Cs. consistent to the provisions of G.O. dated 20.8.1977. Pursuant to the said Ordinance, GO. dated 4.8.1989 was issued implementing 15% reservation for O.B.Cs. By U.P. Public Services Reservations for Backward Classes Act, 1989 (U.P. Act No. 21 of 1989) promulgated in October, 1989 the aforesaid ordinance was replaced and reservation of O.B.Cs. was validated w.e.f. 20.8.1977. By U.P. Ordinance No. 30 of 1990 published on 16.11.1990, reservation for O.B.Cs. in State of U.P. was extended to 27%. It resulted in continued issuance of Ordinances i.e. U.P. Ordinance No. 7 of 1991 dated 6.8.1991, 25 of 1991, and 35 of 1991 dated 25.8.1991. Further vide G.O. dated 11.4.1991 it was provided that all reserve category candidates who would qualify on the basis of their merit, shall not be counted against their quota and will be taken as selected on merit against unreserved seats.
27. The State Legislature thereafter enacted "U.P. Public Services (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1993" (U.P. Act No. 3 of 1993). Subsequently in order to provide a comprehensive enactment for Scheduled Castes, Scheduled Tribes and OBCs, "U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Ordinance, 1994" (U.P. Ordinance No. 5 of 1994) enacted which was replaced by U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (Act of 1994) came into force from 11.12.1993 and vide Section 16 thereof, U.P. Act No. 21 of 1989 and U.P. Act No. 3 of 1993 were repealed.
28. The provisions of reservation thus are applicable to public services and posts now under Act of 1994. The term "public services and posts" has been defined under Section 2(c) and reads as under:
2. (c) "public services and posts" means the service and posts in connection with the affairs of the State and includes services and posts in-
(i) a local authority:
(ii) a co-operative society as defined in Clause (f) of Section 2 of the Uttar Pradesh Co-operative Societies Act, 1965 in which not less than fifty-one per cent of the share capital of the society is held by the State Government;
(iii) a Board or a Corporation or a statutory body established by or under a Central or a Uttar Pradesh Act which is owned and controlled by the State Government, or a Government company as defined in Section 617 of the Companies Act, 1956 in which not less than fifty-one per cent of the paid-up share capita is held by the State Government;
(iv) an educational institution owned and controlled by the State Government or which receives grants in aid from the State Government, including a university established by or under a Uttar Pradesh Act, except an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution.
(v) respect of which reservation was applicable by Government orders on the dale of commencement of this Act and which are not covered under Sub-clauses (i) to (iv);
29. Section 3 and 8 of Act of 1994 makes provision for reservation, concession and relaxation to various categories under the Act of 1994 and read as under:
3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes-(I) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in Sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens.
(4) Where, due to non-availability of suitable candidates any of the vacancies reserved under Sub-section (I) remains unfilled even after special recruitment referred to in Sub-section (2), it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in Sub-section (1) shall not exceed fifty one per cent of the total vacancies.
(5) The State Government shall, for applying the reservation under Sub-section (1), by a notified order, issue a roster which shall be continuously applied till it is exhausted.
(6) If a persons belonging to any of the categories mentioned in Sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under Sub-section (1).
(7) If on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.
8. Concession and relaxation- (1) the State Government may, in favour of the categories of persons mentioned in pub-section (I) of Section 3, by order, grant such concessions in respect of fees for any competitive examination or interview and relaxation in upper age limit, as it may consider necessary.
(2) The Government orders in force on the date of the commencement of this Act, in respect of concessions and relaxations, including concession in fees for any competitive examination or interview and relaxation in upper age limit and those relative to reseevation in direct recruitment and promotion, in favour of categories of persons referred to in Sub-section (I), which are not inconsistent with the provisions of this Act, shall continue to be applicable till they are modified or revoked, as the case may be.
30. It is important to notice that reservation under Section 3(1) is not available to O.B.Cs. who fall within the category of the persons enumerated in Schedule-II of the Act of 1994 commonly known as "creamy layer" and reads as under:
1. Son or daughter of-
(a) a member of Indian Administrative Service, Indian Foreign Service, Indian Police Service, Indian Forest Service or other Central Service whether directly recruited or promoted from any State Service; or
(b) a member of Uttar Pradesh Civil Service (Executive Branch), Uttar Pradesh Police Service or other State Service, who has been directly recruited to such Service; or
(c) such Group A/Class I officer of any Department or Ministry of Government of India or educational, research or other institutions under such Department or Ministry, who is not included in sub-category (a); or
(d) such Group A/Class I officer of any Department or institution of the State Government, who is not included in sub-category (b); or
(e) an officer of the defence forces or paramilitary forces who is not below the rank of a Colonel or equivalent rank;
Provided that the income from salary of such member or service or officer is rupees ten thousand or more per mensum, his spouse is at least a graduate and he or his spouse owns a house in an urban area.
2. Son or daughter of a person engaged in profession as a doctor, surgeon, engineer, lawyer, architect, Chartered Accountant, media and information professional, running educational institution or coaching institute or engaged in the business as share or stock broker or in entertainment business;
Provided that his average income from all sources for three consecutive financial years is not less than rupees ten lakh per annum, his spouse is at least a graduate and his family owns immovable property worth at least rupees twenty lakh.
3. Son or daughter of a businessman whose average income for three consecutive financial years is not less than rupees ten lakh per annum, his spouse is at least a graduate and his family owns immovable property worth at least rupees twenty lakh.
4. Son or daughter of an industrialist whose level of investment in running units is over rupees ten crore and such units are engaged in commercial production for at least five years and his spouse is at least a graduate.
5. Son or daughter of a person who is holding within the limit fixed under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, I960, has an income of rupees ten lakh in a financial year from sources other than agriculture such as salary, business or industry and the like and his spouse is at least a graduate.
6. Son or daughter of a person, not included in any of the aforementioned categories, whose average income from all sources for three consecutive financial years is not less than rupees ten lakh per annum, his spouse is at least a graduate and his family owns immovable property worth at least rupees twenty lakh.
Findings
31. We propose to consider the questions 1, 2 and 3 together. Extreme unemployment, disparity in social conditions, and other historical reasons, resulted in shrinking opportunities of employment and frequent litigation particularly amongst the person of reserved and unreserved class. The unreserved candidates treat and presuppose reservation in service as denial of equal consideration to them in respect to posts and vacancies which are reserved and in the last more than half of the century, the courts have been consistently busy, time and again, in resolving this unending conflict. Though the matter of reservation has been dealt in detail by this Court and Apex Court in a catena of cases dealing with historical aspects also, we are confining ourselves to the problem as has been faced and countered in the State of U.P. and particularly with reference to the category of the candidates classified as O.B.C.
32. It would be useful to remind the speech of Dr. B.R. Ambedkar in the Constituent Assembly of India on 25.11.1949 published in the Constituent Assembly Debate at page 980, expressing his sentiments in the following words:
I am of the opinion that in believing that we are a nation, we are cherishing a great delusion. How can people divided into several thousands of castes be a nation? The sooner we realize that we are not as yet a nation in the social and psychological sense of the world, the better for us. For then only we shall realize the necessity of becoming a nation and seriously think of ways and means of realizing the goal. The realization of this goal is going to be very difficult-far more difficult than it has been in the United States. The United States has no caste problem.
In India there are castes. The castes are anti-national In the first place because they bring about separation in social life. They are anti-national also because they generate jealousy and antipathy between caste and caste. But we must overcome all these difficulties if we wish to become a nation in reality. For fraternity can be a fact only when there is a nation. Without fraternity equality and liberty will be no deeper than coats of paint.
(Emphasis added)
33. Now more than 55 years have passed since then but still we are living under the same disparity based on caste. For reasons more than one, it has grown darker, contrary to the expectations of our forefathers. Noticing the ground realities, the people of India gave to themselves a Government "of the people", "by the people" and "for the people". Though in the Government, representation of majority of the class was otherwise but for those downtrodden who for various reasons remain depressed, and neither could nor allowed to aspire to participate in the governance, had virtually no representation, it was decided to make a provision in the form of reservation so that backward class citizens may be adequately represented in service. Article 16(4) of the Constitution thus was enacted for providing reservation despite the fact that Article 16(1) guarantee equal opportunity of employment to all citizens. However, care was taken that reservation would be provided only when in the opinion of State it is found that any backward class of citizen is not adequately represented in service under the State. In other words, in order to give participation in service under the State, to the backward class of citizens who are not adequately represented, the permissible limit of affirmative action by way of reservation was provided under Article 16(4), but simultaneously Article 14, 16(1) and 335 also keep certain limitations preventing any reverse discrimination and jeopardi to efficiency in administration. It would be useful at this stage to remind us, discussion of advisory Committee as reproduced in the Framing of India's Constitution-Select Documents, Vol-II at page 258 to 262 where the Hon'ble members of the Committee made long discussion over the manner in which Article 16(4) of the Constitution should be worded to provide representation to the persons belonging to depressed and other minority community which are not adequately represented in service and most of the members suggested to add the word "minority" with the word "classes" but it was decided to use the word "classes" which is wider and encompass all namely backward classes and minorities. When the said draft provision was placed before the Constituent Assembly, long drawn discussion took place on the word "backward classes" and "adequate representation" and a serious apprehension was expressed that these words would prove to be a paradise for lawyer but Dr. Ambedkar gave rest to this discussion saying that the Constitution certainly may give rise to questions involving legal or judicial interpretation which often may be required to be taken to the highest court but there is nothing to be ashamed of since there was hardly any Constitution in the world which was not a paradise for lawyers (see "the Framing of India's Constitution-A Study, page 200"). This has proved true by experience since even after more than 55 years of enforcement of the Constitution, we have still not wriggled out of the curse of backwardness and its aftermath and on the contrary it is constantly increasing with the passage of time.
34. It is not in dispute that various G.Os. and Act of 1994 provide "reservation" in services in State of U.P., detailed above, with intent to achieve the above goal i.e. adequate representation of backward class of citizens in the service. Here we may also consider the scope of the expression "reservation" i.e. its meaning and contents. This has already been dealt with in Indra Sawhney (Supra) where the majority (delivered by Hon'ble B.P. Jeevan Reddy, J.) page 540, para 58, held:
The question then arises whether Clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question it is well to examine the meaning and content of the expression 'reservation' Its meaning has to be ascertained having regard to the context in which it occurs. The relevant words are 'any provision for the reservation of appointments or posts'. The question is whether the said words contemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16(4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions as also lesser types of special provisions like exemptions, concessions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration - the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective, i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour. The other type of measure is the one in Thomas. There was no provision for reservation in favour of Scheduled Castes/Scheduled Tribes in the matter of promotion to the category of Upper Division Clerks. Certain tests were required to be passed before a Lower Division Clerk could be promoted as Upper Division Clerk. A large number of Lower Division Clerks belonging to SC/ST were not able to pass those tests, with the result they were stagnating in the category of LDCs. Rule 13-A A was accordingly made empowering the government to grant exemption to members of SC ST from passing those tests and the Government did exempt them, not absolutely, but only for a limited period. This provision for exemption was a lesser form of special treatment than reservation. There is no reason why such a special provision should not be held to be included within the larger concept of reservation.
(Emphasis added)
35. It is thus clear that there are various modes and methods of providing reservation. The extent and nature of reservation is a matter for the State to decide considering facts and requirements of each case. It may provide by keeping the vacancies reserved for backward class citizens or may extend in the form of concessions like fee, age relaxation, special training, exemption, weightage, and various other ways alike. However, under the Act of 1994, Legislature in its wisdom has empowered the State to extend concession limited to fee and age to O.B.Cs. besides keeping reservation of seats to the extent of 27%. The prime objective, obviously, is to provide adequate representation to these classes, which in the opinion of Legislature are not adequately represented in the services under the State. The learned Counsel for the petitioners neither in the pleadings nor otherwise have disputed the necessity of providing concession in fee and relaxation in age to O.B.Cs. conceding social oppression they have faced in the past and thus such concessions, if extended, cannot be faulted. Opportunity to such candidates to come forward and compete for public services without such benefits and concessions would be illusory and the goal setup for affirmative action would be unachievable. Now it is well established that Article 16(4). is an enabling provision vesting discretion in the State to provide reservation, if the circumstances mentioned therein so warrant (see Ajit Singh and Ors. (II) v. State of Punjab ). The Legislature in enacting Act of 1994 has therefore expressed its satisfaction that the respective categories mentioned under Section 3 are not adequately represented in the services under the State and in order to give them adequate representation reservation in service to the extent prescribed thereunder would be necessary. Where the enabling provision under the Constitution has been acted upon by the Legislature, all presumptions in favour of existence of requisite conditions necessary for exercise of such power for making such enactment constitutional would be assumed. No material has been placed on record to show that any category is adequately represented though a feeble attempt was made by Sri R.K. Jain, Senior Advocate while arguing on the vires of Section 3(6) of Act of 1994, contending that recruitment in service in question, of O.B.Cs. to the extent of almost 1/3 of the vacancies against unreserved seats in addition to reserve seats is evident to show that they are not inadequately represented in service. We are afraid a single recruitment or selection cannot be a touchstone to determine adequacy of representation of such class in the entire service unless relevant data is broughtfore to demonstrate the actual cadre strength, number of persons belonging to particular category and other relevant material. At this stage, however, we also enquired from the learned Advocate General as to what is the information available with the State Government regarding the extent of representation of the respective categories of OBCs in service for which reservation has been prescribed in exercise of power under Article 16(4), and whether any such inquiry or investigation has been undertaken at any point of time though reservation for S.C. & S.T. is now continuing for more than 50 years and for O.B.Cs. for the last about 29 years. Despite of our repeated query, he neither could inform nor place any thing to show that any such study has been undertaken by the State of U.P., after enforcing reservation for O.B.Cs. in 1977 though periodically such study ought to have been undertaken. An affirmative action under Article 16(4) is coupled with certain duties namely the interest of efficiency in administration at various level of services, and once representation gets adequate, it should and cannot be allowed to continue since from then on it would become unconstitutional. The valid continuance of reservation under Article 16(4) is preceded by the condition that the respective backward class of citizen is not adequately represented in service. If without statistics, the reservation is allowed to continue, a situation may arrive where one or more class of reserved category may get induction in service occupying a major or much larger strength. A proper balance has to be maintained.
36. In M. Nagraj and Ors. v. Union of India and Ors. the Court observed that Article 16(1) of the Constitution provides equality to individual specific and Article 16(4) and 16(4A) are enabling. The discretion of the State is subjected to two conditions namely existence of backwardness and inadequacy of representation in public employment. The Court observed:
Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review comes in...(para-48)
37. Therefore in a particular case or at a particular point of time, provision for reservation may be valid and just depending upon the existence of the aforesaid conditions and its expediency for continuance is within the ambit of judicial review provided proper pleading and adequate material is available on record to enable the Court to objectively arrive at a particular conclusion. In this case however, though the arguments have been advanced but we do not find any material at all to suggest even or to whisper that the representation in any public employment ex-facie cannot be said to be inadequate or that the backwardness does not exist. In other words for want of relevant material, therefore, we are not able to appreciate whether any class of backward citizen can be said to be adequately represented in service, and thus have to proceed by treating that all such classes are still not adequately represented and continuance of reservation for such categories is valid and not unconstitutional.
38. At this stage, learned Counsel for the appellant urged that it is wholly impossible for the individuals to get this information and relevant material since the only authority who can makes it available is the State and presently even the State has no concrete facts and figures compiled since no such study has been undertaken at all. Therefore to expect from individuals to plead and place such material before the Court is nothing but placing an onus upon them which is just impossible to discharge. The apprehension expressed by the learned Counsel does not appear to be totally unfounded, particularly in view of the inability of the learned Advocate General in placing any information before the Court showing representation of respective class of backward citizens in public office and services. It appears that exercising enabling provisions the reservation has been made but extent to which it has served its purpose or if not, what is the deficiency etc., no attempt has been made by the State to have an indepth study. There may be reasons more than one for ignoring to collect such details, may be political or otherwise, but we cannot forget that pre-condition for invoking Article 16(4) and 16(4A) is the opinion formed by the State that backward class of citizens are not adequately represented in service and the same apply for continuance thereof. The opinion must be shown to have been formed on objective considerations and for continuance of provisions of reservation, the pre-condition must continue to exist. If at any particular point of time, one or more backward class of citizens in the list of said classes gets representation which cannot be said to be inadequate, then onward, reservation to such class would be impermissible under Article 16(4) and 16(4A) of the Constitution. This review will also help in advancement of other backward class of citizens inasmuch as it may happen that availing concessions, relaxations and reservations one or more backward class of citizen may be able to improve its conditions and get a good number of entry in the public service increasing its representation which may not be said to be inadequate. If such class is excluded, it would leave open larger share to remaining categories which will then augment opportunity to others to improve their representation in service and will help in achieving the constitutional objective at the better pace and within reasonable time. On the contrary, if without any objective consideration, and in a mechanical manner, provisions of reservation continue to operate, this may lead to disastrous consequences and may cause a totally unexpected and unwarranted consequences resulting in lions share to one category and virtually no benefit to some others disturbing the equilibrium and mutual harmony amongst various class of citizens. This is neither contemplated the Constitution nor otherwise legally and constitutionally permissible. Therefore, at this stage we find it expedient to direct the State Government of U.P. to undertake an indepth study to find out respective representation of various class of backward citizens in public services and to find out as to whether any backward class of citizen has achieved the constitutional goal of adequate representation in service or not and thereafter to take further action by reviewing the policy in the light of the facts, figures and information received pursuant to such study. We intent to remind the State of U.P. that continuance of reservation under Article 16(4) and 16(4A) is preceded by a condition that the backward class of citizens are not adequately represented in service and once such representation is there, continuance of reservation to such class would not be constitutionally permissible. This exercise shall be undertaken by the State of U.P. within six months and a compliance report shall be submitted to this Court.
39. This leads us to the manner, mechanism and inter relationship of various concessions and reservation, which may operate together or individually, as the case may be. It cannot be doubted that any concession provided by the competent authority to achieve the goal under Article 16(4) without keeping a seat reserve for a backward class of citizen is permissible. Simultaneously without providing any concession it may make provision for reservation of seat. The third contingency would be where certain concessions and benefits are provided as also seats are reserved and both may operate together or separately, as the case may be. In the cases where the concessions and reservation operate separately there is no difficulty in giving effect to since in such a case the question of adjustment or application of Section 3(6) of the Act of 1994 to the reserved candidates availing both would not arise. The grievance germane where availing concession, a backward class candidate competes, and, if secure marks more than general category candidates, claims unreserved seat instead of a reserved seat.
40. At this stage, it would be prudent to notice when certain seats are reserved, it would not result in making unreserved seats compartmentalized for general category candidates i.e. unreserved candidates. There is no reservation for general category candidates. In other words we can say, when certain seats are reserved, a reserve category candidate in addition to reserve seats can always compete for unreserved seats. The unreserved seats are available to all the candidates who participate in the selection irrespective of category for which they belong but a reserve seat is available only to the category of the candidate to which such reserve seat is meant for. To illustrate, if out of 100 seats, 27 are reserved for O.B.Cs., 18 for S.C. and 2 for S.T. candidates, it would mean that an O.B.C. candidate would be able to compete against 27 seats reserved for O.B.C. as well as remaining 53 unreserved seats. Similarly a S.C. candidate would be able to compete against 18 seats reserved for S.C. as well as remaining 53 unreserved seats, and a S.T. candidate would be able to compete against 2 seats reserved for S.T. as well as remaining 53 unreserved seats. On the contrary a general category candidate would be able to compete only against 53 unreserved seats. The zone of consideration, therefore, against the unreserved seats is much wider and extend to 100% of the candidates who participate in the selection but it is not so for reserved seats. The only rider would be, if in the selection process, the test of assessment, merit etc. is different qua unreserved seats and reserved seats, and the candidates belonging to reserved seats enbloc are considered, separately at any stage, than such difference in standard or criteria or indicia having a material bearing in the assessment of merit and influence the open competition and in such case the reserve category candidate may not compete for unreserved seats on account of variation in the standard and not otherwise. It is true and as already observed above, a reasonable balance has to struck between the rival claim of respective categories.
41. In M.R. Balaji and Ors. v. The State of Maysore and Ors. , the Constitution Bench said that interest of reserved class must be balanced against the interest of other segments of the society. In Indra Sawhney (Supra), Hon'ble B.P. Jeevan Reddy, J explained as to how the fundamental right of citizens under Article 16(1) has to be balanced against the claim of reserve candidates in Article 16(4) and said:
It needs no emphasis to say that the principal aim of Article 14 and 16 is equality and equality of opportunity and that Clause (4) of Article 16 is but a means of achieving the very same objective. Clause (4) is a special provision - though not an exception to Clause (1). Both the provision have to be harmonized keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article 14. The provision under Article 16(4) - conceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the entire society. If is relevant to point out that Dr. Ambedkar himself contemplated reservation being "confined to a minority of seats" (See his speech in constituent Assembly, set out in para 28). No other member of the Constituent Assembly suggested otherwise. It is thus, clear that reservation of a majority of seats was never envisaged by the founding Fathers. Nor are we salisfied that the present context requires us to depart from that concept.
42. In P.G.I. M.E.R. v. Faculty Association (Supra) in para 32 the same principle was reiterated as under:
32. Article 14, 15 and 16 including Articles 16(4), 16(4A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji case, Devendasan case and Sabharwal case. Even in Indra Sawhney case the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to he appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram and C.A. Rajendran v. Union of India . It has been indicated in Indra Sawhney case that Clause (4) of Article 16 is not in the nature of an exception to Clauses (I) and (2) of Article 16 but an instance of classification permitted by Clause (1). It has also bean indicated in the said decision that Clause (4) of Article 16 does not cover the entire field covered by Clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in Clause (1) of Article 16 is to be reconciled in favour of backward classes under Clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.
43. In Ajit Singh Januja Second v. State of Punjab in the context of seniority for roster point of promotees the Court observed in para 15:
for attracting meritorious and talented persons to the public services, a balance has to be struck, while making provisions for reservation in respect of a section of the society. This court from time to time has been issuing directions to maintain that balance.
44. The Constitution Bench in Ajit Singh and Ors. (II) (Supra) while reiterating all the aforesaid principles observed that affirmative action and steps should not result in reverse discrimination and reminded the caution expressed by Hon'ble V.R. Krishna Iyar, J. in Akhil Bhartiya Soshit Karmachari Sangh (Railway) v. Union of India and Ors. where in para 73 the Court observed:
care must be taken to see that classification is not pushed to such an extreme point as to make the fundamental right to equality cave in and collapse.
45. In para 102 of Akhil Bhartiya Soshit Karmachari Sangh (Supra), the Court also expressed the same sentiments as under:
The remedy of 'reservations' to correct inherited imbalances must not be an overkill....
46. The Court also quoted the following speech of Dr. Ambedkar in Constituent Assembly in para 37, Ajit Singh and Ors. (II) (Supra):
Supposing for instance we were to consider in full the demands of these communities who have not been so far employed in public services to the fullest extent, what would really happen is we shall be completely destroying the first proposition upon which we all are agree that there shall be equality in opportunity.
47. In M. Nagraj (Supra), the Court observed that the concept of reservation under Article 16(4) is different from the general concept of reservation. In para 39 of the judgment, the Court noticed that the word "reservation" has been incorporated under Article 16(4) but not in Article 15(4) of the Constitution and therefore the word "reservation" as subject of Article 16(4) is different from the word "reservation" as a general concept. It further held that public employment is a scarce commodity in economic terms. Since the supply is wanting, demand is chasing the commodity, which is reality of the life. The concept of 'public employment' unlike right to property is socialistic and falls within the preamble to the Constitution which states that "WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC." It also observed that the concept of 'equality of opportunity' in public employment concerns an individual, whether that individual belongs to general category or backward class. However the conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. The question is of optimization of the conflicting interests and claims since both the claims have a particular object to be achieved.
48. While adjusting these equalities the only further rider available is "maintenance of efficiency in public administration" i.e. keeping the merit intact. Fortunately the Apex Court has also an occasion to consider this aspect of the matter in M. Nagraj (Supra) and in para 44 of the judgment the Court has dealt with the term "merit" as under:
Merit is not a fixed absolute concept. Amartya Sen, in a book, Meritocracy and Economic Inequality, edited by Kenneth Arrow, points out that merit is a dependent idea and its meaning depends on how a society defines a desirable act. An act of merit in one society may not be the same in another, The difficulty is that there is no natural order of 'merit' independent of our value system. The content of merit is concept-specific. It derives its meaning from particular conditions and purposes. The impact of any affirmative action policy on 'merit' depends on how that policy is designed. Unfortunately, in the present case, the debate before us on this point has taken place in an empirical vacuum. The basis presumption, however, remains that it is the State who is in the best position to define and measure merit in whatever ways they consider it to be relevant to public employment because ultimately it has to bear the costs arising from errors in defining and measuring merit. Similarly, the concept of "extent of reservation " is not an absolute concept and like merit it is context-specific.
49. In this case the controversy centered around the limited dispute as to whether an OBC who has applied exercising his option as a reserve category candidate insisting his claim to be considered against a reserve vacancy also, can he be denied selection against an unreserved seat if he secure more marks than the last general candidate only for the reason that such OBC candidate has also availed the benefit of certain concessions namely relaxation in fee and age. In other words, can it be said that concession or relaxation in the matter of fee and age would deprive a reserve candidate his right to be considered against an unreserved seat and can it be said that he is not a person who has competed by selection in an open competition. It appears that earlier the State Government followed different policy of such reserve category candidate's selection against an unreserved seat if he avail certain concessions in age etc. The State Government issued G.Os. dated 11.4.1991, 19.12.1991 and 16.4.1992 providing that the reserve category candidates who have not been given any relaxation in age prescribed standard of selection etc., if secure marks more than the general category candidate selected, such reserve category candidate shall be selected against unreserved seat and shall not be adjusted against reserve seat. However a clarification was issued vide G.O. dated 19.10.1992 wherein also it was provided that a candidate who has not availed any benefit in the standard of selection or age limit etc., shall only be selected against unreserved seats and not otherwise. The G.O. dated 19.10.1992 is reproduced as under:
dkfeZd vuqHkkx&2 y[kuÅ% fnukad 19] vDVqcj] 1992 fo"k;%& izfr;ksfxrkRed ijh{[email protected]{kkrdkj ds ek/;e ls Js"Brk ¼eSfjV½ ds vk/kkj ij pqus x;s vkjf{kr oxZ ds vH;fFkZ;ksa dh x.kuk muds vkjf{kr dksVs ds foijhr fd;k tkukA egksn;]
mijksDr fo"k;d lela[;d 'kklukns'k fnukad 16&4&92 ds lkFk ifBr 'kklukns'k fnukad 19&12&91 rFkk 11&4&91 }kjk ;g funsZ'k fn;s x;s gSa fd [kqyh izfr;ksfxrk @ p;u esa Js"Brk ds vk/kkj ij p;fur vkjf{kr oxZ ds vH;FkhZ ds fy;s vuqeU; NwV ¼;Fkk fu/kkZfjr ekudksa esa f'kfFkyhdj.k rFkk vk;q lhek esa NwV½ u nh x;h gks] dks vkjf{kr oxZ ds fo:) lek;ksftr ugha fd;k tk;sxkA dfri; lzksrksa ls 'kklu dks ftKklk;sa izkIr gqbZ gSa fd ,d ls vf/kd lsokvksa gsrq vk;ksftr lfEefyr ijh{kkvksa esa ^Js"Brk* ds vk/kkj ij vkjf{kr oxZ ds p;fur vH;fFkZ;ksa dks x.kuk fdl izdkj dh tkuh pkfg;sA 2& 'kklu }kjk bl fo"k; ij lE;d fopkjksijkUr 'kklukns'k fnukad 16&4&92 ds izLrj&2&¼111½&ds vuqdze esa fuEufyf[kr Li"Vhdj.k tkjh fd;s tkus dk fu.kZ; fy;k x;k gS& ,d ls vf/kd lsokvksa gsrq vk;ksftr lfEefyr ijh{kkvksa esa lQy vH;fFkZ;ksa dk [email protected];u izR;sd lsok dks vyx&vyx ekurs gq, fd;k tkuk pkfg, ;fn vkjf{kr oxZ dk dksbZ vH;FkhZ viuh&ojh;rk ¼izhQjsUl½ ds vk/kkj ij lkekU; vH;fFkZ;ksa gsrq fu/kkZfjr ekudksa ds f'kfFkyhdj.k rFkk vk;q lhek esa NwV dh lqfo/kk izkIr fd;s fcuk ^Js"Brk @ eSfjV* esa vkrk gS rks mldk lek;kstu vkjf{kr dksVs dh fjfDr @ in ds fo:) ugha fd;k tk;sa blds foijhr vkjf{kr oxZ dks dksbZ vH;FkhZ ;fn viuh ojh;rk ds vk/kkj ij lkekU; vH;fFkZ;ksa gsrq fu/kkZfjr ekudks ds f'kfFkyhdj.k ;k vk;q lhek esa NwV dh lqfo/kk izkIr dj p;u lwph esa vkrk gS rks mldk lek;kstu vkjf{kr dksVs dh fjfDr @ in ds fo:) fd;k tkuk pkfg;sA 3& d`i;k mDr fLFkfr ls vius v/khuLFk l{ke izkf/kdkfj;ksa dks voxr djkus dk d"V djsaA
50. After promulgation of the Act of 1994 providing concession and relaxation under Section 8 and reservation under Section 3, the Government interpreted the same and opined that adjustment of reserve candidates against unreserved seats is permissible where there is no relaxation in the standard of selection but such relaxation would not include concession in age, fee etc. and the implementation/execution of G.O. dated 19.10.1992 was confined to selections made up to 11.12.1993 whereafter as per Act of 1994 as explained by G.O. dated 25.3.1994 which reads as under:
dkfeZd vuqHkkx&2 y[kuÅ% fnukad 25 ekpZ] 1994 fo"k;%& mRrj izns'k yksd lsokvksa esa vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ds fy;s vkj{k.kA egksn;] mijksDr fo"k; ij fnukad 23 ekpZ] 1994 dks iz[;kfir ^^mRrj izns'k yksd lsok ¼vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa vkSj vU; fiNM+s oxksZa ds fy;s vkj{k.k½] vf/kfu;e] 1994** dh izfr layXu djrs gq, eq>s mDr vf/kfu;e dh fuEufyf[kr eq[;&eq[; /kkjkvksa @ O;oLFkkvksa dh vksj vkidk /;ku vkd`"V djus dk funsZ'k gqvk gS%&
1& bl vf/kfu;e dh /kkjk 2 ds [k.M ¼x½ esa yksd lsokvksa vkSj inksa dks foLrkj ls ifjHkkf"kr fd;k x;k gS] ftuesa bl vf/kfu;e ds vuqlkj vkj{k.k ykxw gksxkA mDr [k.M ¼x½ ds vuqlkj ;g vkj{k.k jkT; ds dk;Zdyki ls lEcfU/kr leLr lsokvksa vkSj inksa] mRrj izns'k lgdkjh lfefr vf/kfu;e] 1965 dh /kkjk 2 ds [k.M ¼p½ esa ;Fkk ifjHkkf"kr ,slh leLr lgdkjh lfefr;ksa] ftlesa jkT; ljdkj }kjk /k`r va'k lfefr ds va'k iwath ds 51 izfr'kr ls de u gks] dh lHkh lsokvksa vkSj inksa] lHkh cksMksZ] fuxeksa] dkuwuh fudk;ksa tks jkT; ljdkj ds LokfeRok/khu ;k fu;a=.kk/khu gks vkSj ,slh lHkh ljdkjh dEifu;ksa ftlesa ljdkj }kjk /k`r leknRr 'ks;j iwath 51 izfr'kr ls de u gks] ls lEcfU/kr lHkh lsokvksa vkSj inksa] vYila[;d oxZ }kjk LFkkfir vkSj iz'kkflr laLFkkvksa ;k vf/kfu;e }kjk ;k mlds v/khu LFkkfir leLr fo'ofo|ky; Hkh 'kkfey gSa] dh lHkh lsokvksa vkSj inksa rFkk ,slh leLr lsokvksa vkSj inksa] ftuesa bl vk/;kns'k ds izkjEHk ds fnukad ¼vFkkZr~ 11 fnlEcj] 1993½ dks ljdkj ds vkns'kksa }kjk vkj{k.k ykxw Fkk] ij mDr vkj{k.k vf/kfu;e] 1994 ds izko/kku ykxw gksaxsA 2- mijksDr leLr lsokvksa vkSj inksa esa vuqlwfpr tkfr;ksa ds i{k esa 21 izfr'kr vuqlwfpr tutkfr;ksa ds i{k esa 2 izfr'kr vkSj ukxfjdksa ds vU; fiNM+s oxkZas ds lacaf/kr O;fDr;ksa ds i{k esa 27 izfr'kr vkj{k.k lh/kh HkrhZ ds izdze ij] ljdkj }kjk tkjh jksLVj ds vuqlkj] ykxw gksxkA 3- ;fn fdlh Js.kh ds fy;s vkjf{kr dksbZ fjfDr fcuk Hkjs jg tk;sxh rks ml Js.kh ls lEcfU/kr O;fDr;ksa esa ls ,slh fjfDr dks Hkjus ds fy;s fo'ks"k HkrhZ] rhu ls vuf/kd mruh ckj dh tk;sxh] ftruh ckj vko';d gksA vkSj ,slh rhljh HkrhZ esa Hkh vuqlwfpr tutkfr;ksa ds mi;qDr vH;FkhZ] muds fy;s vkjf{kr fjfDr;ksa ds Hkjus gsrq] miyC/k u gks rks ,slh fjfDr vuqlwfpr tkfr;ksa ls lEcfU/kr O;fDr;ksa }kjk Hkjh tk;sxhA 4- ;fn vkjf{kr Js.kh ls lEcfU/kr dksbZ O;fDr ;ksX;rk ds vk/kkj ij [kqyh izfr;ksfxrk esa lkekU; vH;fFkZ;ksa ds lkFk p;fur gksrk gS rks mls vkjf{kr fjfDr;ksa ds izfr lek;ksftr ugha fd;k tk;sxk vFkkZr~ mls vukjf{kr fjfDr;ksa ds izfr lek;ksftr ekuk tk;sxk] Hkys gh mlus vkjf{kr oxZ ds vH;fFkZ;ksa dks vuqeU; fdlh lqfo/kk ;k NqV ¼;Fkk vk;q lhek esa NwV vkfn½ dk miHkksx fd;k gksA 5- bl vf/kfu;e ds iz;kstuks dk] ;FkkfLFkfr tkucw> dj mYya?ku djus] ;k mUgsa foQy djus ds vk'k; ls dksbZ dk;Z fd;s tkus ij] lEcfU/kr vf/kdkjh] ftls bl vf/kfu;e dk vuqikyu lqfuf'pr djus dk mRrjnkf;Ro jkT; ljdkj }kjk vf/klwfpr vkns'k }kjk lkSaik tk;sxk] nks"k fl) gksus ij] vf/kdre rhu ekl ds dkjkokl ;k ,d gtkj :i;s ;k nksauks ls n.Muh; gksxkA 6- bl vf/kfu;e ds izkjEHk ds fnukad ¼11 fnlEcj] 1993½ dks inksUufr ds ekeyksa esa vkj{k.k ls lEcfU/kr ljdkj dks tks vkns'k ykxw Fks] og ;Fkkor ykxw gksaxsA 2- vkils ;g vuqjks/k djus dk eq>s funsZ'k gqvk gS fd layXu vf/kfu;e] 1994 ds leLr izko/kkuksa dk lHkh Lrjksa ij mu lHkh yksd lsokvksa o inksa ds lEcU/k esa dM+kbZ ls vuqikyu lqfuf'pr fd;k tk;] ftudk mYys[k bl 'kklukns'k ds izLrj&1 ds [k.M ¼1½ esa fd;k x;k gSA ;g Hkh vuqjks/k gS fd mijksDr vf/kfu;e ds izko/kkuksa ls vius v/khuLFk lHkh vf/kdkfj;ksa @ izkf/kdkfj;ksa dks Hkh vki d`i;k voxr djk ns rkfd bu izko/kkuksa dk lHkh laxr ekeyksa esa dM+kbZ ls vuqikyu lqfuf'pr fd;k tk ldsA
51. It is true that interpretation of statute would not depend on the understanding of the executive but the fact remains that on and after the enforcement of Act of 1994, in the State of U.P., Section 3(6) is being implemented by giving adjustment to reserve category candidates against unreserved seats provided they are selected in open competition with general category candidates without availing any concession or relaxation in the standard of selection which docs not include relaxation in age or fee. The State therefore has not treated relaxation in age and fee as relaxation in the standard of selection and the crucial question up for consideration before us whether such relaxation can deprive a reserve category candidate denuding his status as a candidate competing in open competition with general category candidate when all other things are equal except the fact that such candidate has availed concession in fee and/or age limit. Having given our very serious, indepth thoughts to the question, we are of the view that relaxation in age and fee can not be treated to be a relaxation in standard of selection and shall not deny a reserve category candidates selection in open competition with general category candidates. As we have observed, the term "reservation" comprises various kinds of concession, relaxation etc. but Section 8(1) of Act of 1994 is confined to only two kinds of relaxation/concession namely "concession in fee" and "relaxation in upper age limit". Sub-section 2 of Section 8 however provides that if any Government order is in force on the date of commencement of the Act, providing any concession, relaxation including concession in fee for any competitive examination, interview and relaxation in upper age limit relating to reservation in direct recruitment or promotion which are not inconsistent with the provisions of the Act, shall continue to be applicable till they are modified or revoked as the case may be. We are informed that presently and for selection in dispute, only concession in fee and relaxation in upper age limit and no other concession or relaxation is available to the receive category candidates specified under Section 3(1) of the Act of 1994.
52. Learned Counsel for the parties during the course of argument have conceded that concession in fee in order to enable a reserve category candidate to be able and eligible to participate in competitive examination would not cause any added advantage to him depriving his selection ; against unreserved seat. The entire gamut of arguments has confined to the possible advantage a reserve category candidate, who has availed the benefit of relaxation in upper age limit and it is contended that such a candidate start and compete with headstart and added advantage of extra qualification, extra experience etc. and therefore it cannot be said that he is a candidate who is selected in open competition with general category candidate. To answer this question it would be appropriate to recapitulate some conditions of advertisement. A perusal thereof shows that though a general competition was notified but the eligibility qualifications for candidates were not identical even amongst the general category candidates with whom there is no dispute whatsoever. The age limit for general category candidates ranges from 21 to 25. Besides, for Scheduled Castes, Scheduled Tribes, O.B.Cs. and dependents of freedom fighters, five years relaxation in age is provided. For Ex-serviceman the age relaxation is to the extent of service rendered in Army plus three years. Even the educational qualification for all is not equal. For others it is graduation, but for the candidates of Ex-serviceman category, it is Intermediate or equivalent thereto. It is an admitted position that the Ex-serviceman compete horizontally i.e. in their own category as well as alongwith the general and other category candidates and the petitioners have no grievance of any handicap or supposed headstart with such candidates. Similarly the dependents of freedom fighters also compete horizontally and occupy seats in general category also if secure more marks but there is no quarrel or dispute against their selection or any so called handicapness on account of age relaxation to such category of persons. Even amongst the general category candidates, age varies from 21 to 25 i.e. a person who is at the initial level of the prescribed age will have to participate with the person who is at the last level of the age. If the arguments that merely on the account of difference in age any handicapped in the standard of selection or open competition would cause, such an argument can be raised when there is different level of age prescribed for eligibility since a candidate having 21 years of age can always say that he is not being equally treated with the candidates who are having the age of 22, 23, 24 or 25 years since they are not equally situated. In our view the contention is ex-facie erroneous and misleading. Concession in respect to age, fee etc. are the provisions pertaining to eligibility of a candidate to find out as to whether he can appear in the competitive test or not and by itself do not provide any indicia of open competition. The competition would start only at the stage when all the persons who fulfill the requisite eligibility conditions namely qualification, age etc. are short listed. The candidates in the zone of consideration entering the list on the basis of the aforesaid qualifications would thereafter participate in competition and open competition would commence therefrom. In other words we can say that concession in fee or relaxation in upper age limit are the provision not concerned with the process of selection i.e. open competition itself but are the provisions pertaining to eligibility i.e. to bring in a candidate in the zone of consideration. Once a person is included in the zone of consideration, he is entitled to participate in the open competition irrespective of difference in the eligibility qualification Further, if on account of his identity belonging to particular category, any procedural difference is observed in the selection itself, in that case only, such an adjustment under Section 3(6) of Act of 1994 would not be applicable and not otherwise. To elaborate our view, in the case in hand, the identity of individual candidate whether general, scheduled caste, scheduled tribe or O.B.C. has no relevance in the entire process of selection and it is only when the final select list is prepared, selection qua respective category of vacancies would be made. For example in the present case, all the candidates, securing 50% marks and more in the preliminary qualifying written test participated in the physical test irrespective of the number of candidates qualifying against individual category. The standard of selection is common to all. Similarly in the physical test also all the candidates irrespective of their category, securing at least 50% marks quality and appear in the main written test. Again all the candidates who secured 40% and above in main written test were declared successful in written test and thereafter, all of them appeared in interview. It is only after interview, a final merit list on the basis of marks secured in main written lest and interview is prepared and thereafter the final select list is prepared applying reservation. At any stage prior thereto, the candidate's identity had no relation or relevance in the process of selection whatsoever. Thus, in our view, ex-facie and undoubtedly, at the time of final select list, Section 3(6) of Act of 1994 would be applicable and if a reserve category candidate has secured marks wore than a last general category candidate, he is entitled to be selected against unreserved seat without being adjusted against a reserved seat.
53. Now we take up another case. An examination consists of written test and interview. The result of written test is declared categorywise preparing list of successful candidates applying reservation and preparing lists separately. Further, the interview is held by fixing different dates for general category candidates and reserve category candidates and thereafter the interview is also held categorywise. In such a cases, since the identity of the different category of candidates in the midst of selection has played an important role differentiating it from an open competition, therefore in such case Section 3 (6) of Act of 1994 would not apply. A similar question came up for consideration before a single judge of this Court in Arvind Kumar Singh v. State of U.P. and Ors. Writ Petition No. 5844 (SS) of 1999 decided on 11.2.2002 and the Court held:
The phrase 'open competition with general candidates' bears significance, as unless there is competition amongst the general candidates and reserved category candidates at the same level, the benefit of the said phrase may not be available to the reserved category candidate. In case a separate list is prepared according to the merit of the reserved category candidates in written examination and likewise separate interviews are held of the reserved category candidates excluding the general category candidates. The State Government has also not disclosed the criteria or the minimum marks which have been kept as qualifying marks for the reserved category candidates in the written examination and for general category candidates respectively. Likewise, the criteria for interview and the minimum marks prescribed in the interview for reserved category candidates and minimum marks fixed for the general category candidates has also not been disclosed.
In a selection which can be termed as open competition with general category candidates, the candidature of the reserved category candidates as well as the general category candidates is to be tested on the same merit and if in that case a reserved category candidate succeeds in the open competition with general category candidates, he would be placed amongst the general category candidates. In the instant case, the result so declared in the written examination does indicate that a separate criteria appears to have been adopted for examining the copies with respect to reserved category candidates and general category candidates. Therefore, a separate merit list have been made and the result of the written examination have been declared categorywise. Subsequently separate interview were also held and the result has also been declared separately categorywise. The selection thus so made cannot be said to be a selection as a result of open competition with the general category candidates.
It may be true that in view of the advertisement the selection process ought to have been adopted in a manner also that it could have been an open competition with general candidates, i.e. by comparing the merit of the reserved category candidates alongwith the merit of the general category candidates and thereafter final select list could have been prepared by placing the reserved category candidates in the list of finally selected candidates as per their merit but this procedure was not adopted. In the absence of given procedures being adopted, the benefit of Section 3(6) of the Act perhaps would not be available to the reserved category candidates.
54. Similarly where a combined written test is held but thereafter the process of selection is categorized in as much as the result is declared categorywise one for general category candidates and Ors. for reserve category candidates, and thereafter interview is held. Whether interview is held categorywise, separately or different category candidates are interviewed in a combined manner by itself would not make any difference for the reason that once in the process of open competition, different categories are identified for the purpose of declaration of result even for qualifying purpose, it cannot be said that there is an open competition amongst the general and reserve category candidates and in such case, Section 3 sub-Section 6 would not be attracted. In Dinesh Kumar Shukla v. State of U.P. and Anr. 2004 (4) AWC 3487 (LB) a Division Bench of this Court, while interpreting Section 3 Sub-section 6 of Act of 1994, held as under:
In the case in hand, which is based on similar facts as in the case, referred to above, the selection so held cannot be said to be a selection based on merit in an open competition amongst the general category candidates, except that a combined written examination was held and the entire process of selection has been taken separately and categorywise. The result of the written examination was declared categorywise, meaning thereby that different criteria was adopted for declaring the candidates successful in the written examination, namely, one for the general category and other for the reserved category. The merit list was, thus, a separate merit list, prepared for the purpose. The interviews were also held separately and the result was also declared categorywise. Thus, it cannot be said that it was an open competition amongst the general category candidates and reserved category candidates and, therefore, Section 3(6) would not be attracted. Consequently, action of the petitioner could not have been termed as a misconduct.
55. The reason for considering reserve category candidates against unreserved seats is writ large. As said earlier, an unreserved seat is available to all the candidates who are in the zone of consideration but a reserve seat is confined to a candidate of that particular person. In an open competition, general category candidate is entitled to compete only against an unreserved seat but a reserve category candidate in addition to his right to be considered against the reserve seat is also entitled to be considered against unreserved seats. His option in the application for consideration of his candidature for reserve seat is only a declaration of his intention to be considered against reserve seat without depriving himself right to be considered against an unreserved seat. It is true that in Indra Sawhney (Supra) this question as such was not directly in dispute and the Apex Court on the basis of the provision contained in the office memorandum issued by the Government of India found that the members belonging to reserve category candidate selected in open competition on the basis of their own merit will not be counted against reserved seats and will be selected against unreserved seat but reason permitting for such competition has been given in the judgment itself:
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 there own merit, they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.
56. Again in R.K. Sabharwal and Ors. v. State of Punjab the court observed:
The posts shown at the reserve points are to be filled from amongst the members from reserved categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation.
57. In Ritesh R. Shah v. Dr. Y.L. Yamul and Ors. the Court clearly hold:
In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category.
58. The same view has been reiterated in Union of India and Anr. v. Satya Prakash (Supra) and the Court has even elaborated this issue as under:
By way of illustration, a reserved category candidate, recommended by the commission, without resorting to relaxed standard (i.e. on merit) did not get his own preference 'say IAS' in the merit open category, for that, he may opt a preference from the reserved category. But simply because he opted a preference from the reserved category does not exhaust quota of OBC category candidate selected under relaxed standard. Such preference opted by the OBC candidate who has been recommended by the Commission without resorting to the relaxed standard (i.e. on merit) shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and other Backward Classes. Para-18.
59. Learned Counsel for the petitioner-appellants raised a serious apprehension that if such a course is permitted, it would result in reverse discrimination inasmuch as recruitment of reserve category candidates would excel the general category candidates and the later would get selection in minority. It would defeat the very purpose and objective of providing reservation under Article 16(4) of the Constitution. We are not impressed by the submission. No doubt, in the case in hand, the number of reserve category candidates who are successful against unreserved seats is impressively high i.e. 183 against 600 and odd unreserved seats but a single instance ox one selection would not be sufficient to fortify such apprehension. It is another way of achieving the goal of providing adequate representation to backward class of citizens in a speedier manner without compromising with the constitutional scheme. However to find out as to whether a particular backward class of citizen is adequately represented in service or not the total population or representation in service irrespective of the manner of his selection whether it has come in open merit against unreserved seat or against reserve seat would be relevant and has to be counted but for the purpose of giving benefit of reservation such methodology is not permissible. The idea of providing reservation under Article 16(4) of the Constitution is based on the precondition of inadequate representation of backward class of citizens in public employment. If such representation has reached the stage of adequacy, from that stage and onwards such reservation would be impermissible. Therefore to find out as to whether a particular backward class is adequately represented in service or not its total population may be considered irrespective of the fact whether it has come against unreserved seat or reserve seat but so long as a particular backward class is inadequately represented, then for the purpose of implementing the policy of reservation, the candidate who qualify against unreserved seat is not to be adjusted against reserved seats. We are supported in taking this view by a Constitution Bench judgment of the Apex Court in R.K. Sabharwal (Supra) where the Court held:
It is, therefore, incumbent on the State Government to reach a conclusion that the backward class classes for which the reservation is made is not adequately represented in (he State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the backward class then the percentage has to be followed strictly. The prescribe percentage cannot be varied or changed simply because some of the members of the backward. class have already been appointed promoted against the general seats.... The fact that considerable number of members of backward class have been appointed promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed.
60. This also leads to the conclusion that recruitment of reserve category candidates against unreserved seats therefore would not be material for the purpose of applying the principle of 50% reservation since the candidate selected against unreserved seats are not to be counted for the purpose of applying 50% limit of reservation in view of the discussion made above. Here also we are fortified in taking this view by the judgments of the Apex Court in Indra Sawhney (Supra), R.K. Sabharwal (Supra). In M. Nagraja (Supra), the Court in para 58 of the judgment after referring to the earlier judgments has reiterated as under:
In Indra Sawlmey Reddy, J. noted that reservation under Article 16(4) do not operate on communal ground. Therefore if a member from reserved category gets selected in general category, his selection will not be counted against the quota limit provided to his class. Similarly, in R.K. Sabharwal the Supreme Court held that while general category candidates are not entitled to fill the reserved posts; reserved category candidates are entitled to compete for the general category posts. The fact that consideration number of members of backward class have been appointed promoted against general seals in the Slate services may be a relevant factor for the State Government to review the question of continuing reservations for the said class.
61. At this stage we direct the State Government of U.P. to observe the above principles while considering representation of respective classes in service and to find out whether the respective classes are adequately represented in service or not.
62. Issue Nos. 4 and 5 are inter-related and may be dealt with together. The learned Counsel for the petitioner-appellants contended that Article 16(2) of the Constitution prohibit any discrimination merely on the ground of sex in respect of any employment or office under the State and therefore reservation of vacancies for women only on the basis of sex is ex-facie unconstitutional and violative of Article 16(2) of the Constriction. It is further contended that in any case, vacancies which could not be filled in from suitable women candidates ought to have been filled in by other eligible and suitable male candidates but, the authorities not only earmarked vacancies for women candidates but the unfilled vacancies have been carried forward which is illegal and contrary to law.
63. It is not disputed that in the State of U.P., for the first time vide G.O. dated 26.2.1999 reservation for women in public service and offices under the State Government against the post to be filled in direct recruitment to the extent of 20% was provided. The said reservation is not applicable to the posts which are to be filled in by promotion. A perusal of the aforesaid G.O. also shows that the said reservation is horizontal and is adjustable amongst the respective categories to which the concerned women belong namely if she is a general category candidate, she would go against general category seat and if she is a reserve, would go to the respective reserve category. Para 4 also provides where, in a particular selection, suitable women candidates are not available, the vacancy shall not be carried forward for future recruitment but shall be filled in by the suitable male candidates. It would be appropriate to reproduce para 4 of the said G.O.:
4- jkT;k/khu yksd lsok ds ij inksa ds lh/kh HkrhZ ds fy, fdlh p;u esa efgykvksa ds fy, vkjf{kr in ;fn efgyk vH;fFkZ;ksa ds miyC/k u gksus ds dkj.k ugha Hkjk tk lds rks og in mi;qDr iq:"k vH;fFkZ;ksa ls Hkjk tk;sxk o Hkfo"; ds fy, izsf"kr ugha fd;k tk;sxkA
64. At this stage we find that though long drawn arguments were advanced on the validity of reservation for women in general but in writ petition there was no relief sought by the petitioner-appellants assailing either the validity of the G.O. dated 26.2.1999 or to seek a mandamus declaring women reservation illegal or unconstitutional. In the absence of any such relief sought in the writ petition, we do not find it appropriate to permit the petitioner-appellants to raise the issue of validity of the G.O. dated 26.2.1999 providing reservation for women in the public services in the State. Learned Counsel of the petitioner-appellants pointed out that in Writ Petition No. 34039 of 2001 there is a challenge to the G.O. dated 26.2.1999 but we find that only in the grounds such a plea was raised but no relief was sought. However, learned Counsel for the petitioner-appellants contended that it is only a legal issue and since the ground has been taken, he may be permitted to make a formal amendment in the prayer seeking necessary relief against the G.O. dated 26.2.1999 and the issue may be considered accordingly. In the circumstances without hampering the process of judicial review in sheer technicalities and niceties of pleadings which are the rules of procedure followed in the aid of administration of justice, we proceed to consider the validity of women reservation in public services in general and in particular with respect to the service in question in the light of the respective submissions advanced by the parties before us.
65. Now we propose to consider whether reservation for women as such is unconstitutional and violative of Article 16(2) of the Constitution. Article 15(3) allows the State to make special provisions for women and children and the said provision has been enacted with non obstante clause. It is worthy to notice that Article 15(1) also prevent State from discriminating any citizen on the ground only of religion, race, caste, sex, place of birth or any of them and the only difference between Article 15(1) and 16(2) is that under Article 16(2) besides the grounds provided under Article 15(1), two additional grounds have been provided i.e. descent and residence. As long back in 1953, validity of certain provisions of Bombay Municipal Boroughs Act, 1925 providing reservation of certain seats for women in election was challenged on the ground of violation of Article 14, 15 and 16. The Court (His Lordship Hon'ble Chagla, C.J.) negativing contention explained the scope of Article 15 observing that it should be borne in mind that discrimination prohibited by Article 15(1) is one which is only on one of the grounds mentioned in Article 15(1). However, favour of a particular sex is permissible provided it is not founded only on the ground of sex but is the result of other considerations besides the fact that persons belonging to that class are of a particular sex. In 1954, raising a similar contention that merely on the ground of sex discrimination is prohibited under Article 15(1), the vires of Section 497 IPC was challenged before the Apex Court in Yusuf Abdul Aziz v. State of Bombay and Anr. 1954 SCR 930. Referring to Clause 3 of Article 15, the Court observed that sex is a sound classification and although there can be no discrimination in general on that ground alone, the Constitution itself provides special provisions in the case of women and children and upheld its validity. In B.R. Acharya v. State of Gujrat and Anr. 1988 LIC 1465, certain posts were reserved only for lady officers which was challenged being violative of Article 15(1) and Article 16(2) of the Constitution. Rejecting the contention, a Single Judge of the Hon'ble Gujrat High Court observed that the institutions where destitute women, unmarried mothers etc. are kept and the Government decides that such institute should be headed by Lady Superintendents, it cannot be said that reservation is based only on the ground of sex and hence is not vitiated in law. It was further observed that regard to the nature of duties to be performed, it is open to the Government to decide that the institutions which are exclusively meant for women should be headed by only women or lady officers and such reservation cannot be held to be violative of Article 15(1) of the Constitution. In Government of Andhara Pradesh v. P.B. Vijaya Kumar and Anr. , validity of Rule 22 (a) of Andhra Pradesh and Subordinate Service Rules providing 30% reservation for women in direct recruitment to the posts governed by the said rules came up for consideration. The High Court declared the said rule invalid but the Apex Court reversing the decision held:
Article 15 deals with every kind of State action in relation to the citizen of this country, Every sphere of activity of the State is controlled by Article 15(1). There is, therefore, no reason to exclude from the ambit of Article 15(1) employment under the State. At the same time Article 15(3) permits special provisions for women. Both Articles 15(1) and 15(3) go together.... This power conferred by Article 15(3) is wide enough to cover the entire range of State activity including employment under the State.
66. The Court further held that an important aspect of the concept of gender equality is creating job opportunities for women and to suggest that under Article 15(3), job opportunities for women cannot be created would cut at the very root of the underline inspiration behind the said provision. The Apex Court also considered the relationship of Article 15(3) and Article 16 and held:
Making special provisions for woman in respect of employment or posts under the State is an integral part of Article 15(3). This power conferred under Article 15(3) is not whittled down in any manner by Article 16.
67. In Toguru Sudhakar Reddy and Anr. v. Government of Andhra Pradesh and Ors. approving the decision of Andhra Pradesh High Court, the Apex Court upheld reservation beyond 50% for women under Article 15(3) observing that 50% ceiling observed in M.R. Balaji and Ors. (Supra) would not be applicable to Article 15(3) since it is confined only to reservation under Article 15(4) and 16(4) of the Constitution of India. In Vijay Lakshmi v. Punjab University and Ors. , referring to Article 15(3), the Court upheld Rule 5 and 8 of Punjab University Calendar, Vol. 3 which provides for appointment of lady principals and lady teachers in women colleges.
68. To buttress their submission that reservation for women is vitiated in law, the petitioner-appellants placed reliance on Union of India and Ors. v. Permanand Singh 1999 SCC (L&S) 625 wherein reservation of posts of Telephone Operators, exclusively for women, held illegal. However in our view the aforesaid judgment has no application to the facts of the case in hand. In Parmanand Singh (Supra) no provision was made providing reservation for women on the post of Telephone Operators though recruitment was governed by statutory rules, i.e. Posts and Telegraphs (Telephone Operators) Recruitment Rules, 1968. Without making any provision for such reservation, an advertisement was published by the department advertising all the vacancies reserved for female candidates only. The aforesaid advertisement was challenged before the Central Administrative Tribunal, Patna Bench, Patna, which was allowed and the advertisement was quashed, whereafter in appeal, the Apex Court upholding the aforesaid judgment held that without making any provision for reservation for women referable to Article 15(3) of the Constitution, advertisement reserving vacancies for women is not permissible. This is apparent from the following:
Since the Rules do not make any provision for reservation of posts for women in the matter of appointment on the posts of Telephone Operators, it was not permissible for the appellants to reserve the posts of Telephone Operators in the Patna Telephone Exchange for women only.
69. The Apex Court also considered P.B. Vijaya Kumar (Supra) referred by us above and distinguished the aforesaid judgment observing that there was a provision for such reservation in P.B. Vijaya Kumar (Supra). In our case also provision for reservation has been made vide G.O. dated 26.2.1999 and therefore it is not a case where the provision is lacking. Thus the aforesaid judgment lends no support to the petitioner-appellants. A feeble attempt has been made by learned Counsel for the petitioner-appellants to contend that provision can be made by statutory rules and not by the G.O. However the same has to be rejected outright since this aspect is no more res integra. In Indra Sawhney (Supra) the Apex Court while considering the issue as to how reservation can be made under Article 16(4) of the Constitution, held that it is permissible to make provision by executive order or rule or Legislature Enactment, as the case may be. In para 55 and 56 (AIR) of the judgment the Court discussed the issue and held that the use of the word "provision" under Article 16(4) shows that the reservation can be provided by executive order also.
70. It cannot be doubted in the present State of affairs when almost 50% of population is that of women, in the public offices also, lady officers in sufficient number would be necessary since, the ladies feel more free and convenient to deal with lady officers comparing to males. In particular reference to the police department, now police stations wholly managed by lady police personnel, are being established, the lady officials dealing crime specially against females is stressed upon on judicial side also from time and again. Therefore reservation for women in Police department in particular and public employment in general provided in State of U.P. is not solely based on the ground of sex and thus not vitiated. Reservation for women cannot be said to be arbitrary or unconstitutional and is protected by Article 15(3) of the Constitution.
71. Now coming to the second aspect. 52 vacancies of general category kept reserved for general women candidates but on account of non availability of suitable women candidates, left unfilled and carried forward for next selection instead of filling in from the general category male candidates. In our view the respondents have erred in law by carrying forward the aforesaid vacancies. From a bare reading of para 4 of the G.O. dated 26.2.1999 it is apparent that the vacancies which remained unfilled from lady candidates could not have been carried forward to the next selection but ought to have been filled in from the male candidates in the same selection. The Hon'ble Single Judge has rejected contention of the petitioner-appellants on this issue by observing that Government Order does not specifically provide that the post which are not filled up by women candidates are to be filled in from different category male candidates and therefore there is no error committed by the respondents by leaving 52 vacancies reserved for women unfilled. The aforesaid view of the Hon'ble Single Judge is apparently erroneous and inconsistent to the specific provision contained in the G.O. dated 26.2.1999 and in particular para 4 thereof and therefore to that extent the judgment under appeal is unsustainable. 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 from the same selection.
72. Issue No. 6 arise out of Special Appeal No. 592 of 2006 preferred by the State of U.P. We are required to consider as to whether direction to fill in 2% sports quota excluded from the aforesaid advertisement is correct or is erroneous in the facts and circumstances of the case. We find that the State Government has provided 2% reservation in the subordinate non-gazetted police service reserve for sportsman ¼dq'ky f[kykM+h½- A perusal of the advertisement would shows that the number of vacancies declared were as follows-
in fjfDr;ka iq:"k lc baLisDVj 1231 in efgyk lc baLisDVj 148 in IykVwu dek.Mj 255 in
73. Thus in all 1379 vacancies of S.I.C.P Were advertised and 255 vacancies of Platoon Commanders were advertised. The advertisement also provides that presently 2% of the aforesaid vacancies are reserved for sportsmen ¼dq'ky f[kykM+h½- The respondent-appellants however contended that it was decided to fill in the sportsman quota separately for which an advertisement was to be issued separately. We find that the advertisement published in the various news papers does not mention that the vacancies reserved for sportsmen ¼dq'ky f[kykM+h½- shall be filled in separately and it is not part and parcel of the aforesaid advertisement. Moreover, the issue has to be considered from another angle, namely, as to whether separate selection or recruitment only for sportsmen ¼dq'ky f[kykM+h½- is permissible in law or not. The respondent-appellants have placed on record office memorandum dated 2.1.1999 which provides procedure for recruitment of sportsmen ¼dq'ky f[kykM+h½- against 2% seats reserved for the said category pursuant to the GO. dated 23.12.1993. A perusal of the said office memorandum makes it clear that the sportsmen ¼dq'ky f[kykM+h½- belong to respective categories would be adjusted against appropriate category namely general, scheduled castes, scheduled tribes, O.B.Cs. etc. Para 3 of the said office memorandum is reproduced as under:
3- mi;ZqDr vgZrkvksa ds dq'ky f[kykfM+;ksa ds fy, lEcfU/kr lsok laoxZ ds lEcfU/kr p;u o"kZ dh fjfDr ds 2 % fjDr inksa dks vyx djds Hkjk tk,xkA mRrj izns'k yksd lsok 'kkjhfjd :i ls fodykax LorU=rk laxzke lsukfu;ksa ds vkfJr vkSj HkwriwoZ lSfudksa ds fy, vkj{k.k vf/kfu;e 1993 dh /kkjk&3 dh mi/kkjk&3 ds vuqlkj ;fn ,sls HkrhZ fd;s x;s dq'ky f[kykfM+;ksa esa ls vuqlwfpr tkfr @ tutkfr] fiNM+h tkfr ds O;fDr p;fur gks tkrs gSa] rks mUgsa mDr vkjf{kr oxZ ds fy, fu;ekuqlkj vkjf{kr izfr'kr ds vUrxZr gh lek;ksftr ekuk tk;sxkA ;gh O;oLFkk lkekU; oxZ ds p;fur vH;FkhZ ds fy, gksxhA
74. In other words the aforesaid reservation has to operate horizontally. We are not made aware of any provision by the learned Counsel for the respondent-appellants that the unfilled vacancies of sportsmen ¼dq'ky f[kykM+h½- quota can be carried forward to the next recruitment. In the absence of provision for carry forward of vacancies meant for sportsmen ¼dq'ky f[kykM+h½- in the particular recruitment, if suitable candidates belong to that category are not available, such vacancies would have to be filled in by the suitable other candidates. The distinction between the vertical and horizontal reservation has been considered by the Apex Court in Indra Sawhney (Supra) in para 95 and 832 (AIR) and it has been held that horizontal reservation cut across the vertical reservation what is called interlocking reservations. The candidates selected against a horizontal reservation quota will be placed in the appropriate cadre i.e. if he belongs to scheduled caste category, he will be placed in that category by necessary adjustment, similarly if he belongs to general category, will be placed in that category and so on. In Anil Kumar Gupta v. State of U.P. and Ors. 1995 (3) UPLBEC 1447 considering the horizontal reservation available to physically handicapped category candidates this Court observed that while applying horizontal reservation the Government may compartmentalize the horizontal reservation to the respective categories but only to that extent and no more, since the vacancies left unfilled from the respective categories in horizontal reservation should be filled in from the other suitable candidates. In the absence of any provision for carrying forward, non-recruitment of 29 vacancies from the aforesaid selection on the plea of reservation for sportsmen cannot sustain. This issue has also been dealt with in detail by the Hon'ble Single Judge and we are in agreement with the Hon'ble Single Judge.
75. The last issue, general allegations that some of the candidates who were not declared successful in the main examination have been shown finally selected in the merit list which shows serious irregularity and bungling in the selections. The respondents have categorically denied the said allegations stating that there was some error in the printing of the result and the roll numbers. Para 6 of the counter affidavit explaining the same is reproduced as under:
6- ;g fd ;kfpdk ds izLrj & 17 esa vafdr ;kph dk dFku Lohdkj ugha gSA ijh{kkQy rS;kj djus esa cM+h vfu;ferrk ugha gqbZ gSA vuqdzekad & 063357] 480612] ,oa 060007 vfUre p;u ds mRrh.kZ ugha gq;s gSA lekpkj i= esa xyrh ls os vuqdzekad Ni x;s gSaA tcfd mRrh.kZ gksus okys vuqdzekad 0600057 490612] 0600007 gSA vuqdzekad&0600057] 0490612 o 0600007 tks eq[; fyf[kr ijh{kk o lk{kkRdkj esa vad izkIr dj esfjV ds vuqlkj p;fur gq, gSa] mUgha dks izf'k{k.k esa Hkstk x;k gSA vuqdzekad 0633357] 480612 o 0600007 tks eq[; flfoy ijh{kk esa vuqRrh.kZ gks x;s Fks vkSj xyrh ls mudk uke lekpkj i= esa Ni x;k gS mudks izf'k{k.k esa ugha Hkstk x;k gSA bl rjg ls os gh vH;FkhZ tks eq[; fyf[kr ijh{kk esa mRrh.kZ Fks vkSj lk{kkRdkj fn;s gSa vkSj esfjV ds vuqlkj ¼eq[; fyf[kr ijh{kk ,oa lk{kkRdkj ds vadksa dks tksM+us ij½ p;u esa vk jgs Fks mUgsa gh p;fur fd;k x;k gSA
76. Learned Counsel for the petitioner-appellants could not place anything before us to dispute the aforesaid averments made by the respondents.
77. Therefore we do not find any material on record to hold that selection is vitiated due to any alleged bungling or other irregularity.
78. In view of the aforesaid discussion, Special Appeal No. 592 of 2006 preferred by the respondent-appellants is dismissed. The remaining special appeals partly succeed, and we direct the respondent-authorities to fill in the unfilled vacancies reserved for women candidates and sportsmen ¼dq'ky f[kykM+h½- from suitable candidates of respective category on the basis of merit list and send them for training and provide all other benefits, if any as per rules. However we may add here, since the respondents did not hold recruitment for sports persons in the present selection and we are informed that a separate selection was held, therefore, we provide that the vacancies remain unfilled from the separate selection held for sportsmen against 29 vacancies separated from the impugned selection, only those remaining vacancies shall be made available to the respective candidates of this selection. The State Government is also directed to comply with the other directions given above regarding investigation into representation of respective classes in public services within six months and submit a compliance report to this Court immediately thereafter and not beyond 31st July, 2007. The Registrar General is directed to send a copy of the judgment to the Chief Secretary, U.P. Government, Lucknow and Secretary (Karmik), U.P. Government, Lucknow, for information and compliance. The aforesaid authorities are also directed to communicate the principles laid down in the judgment to various recruiting agencies and bodies responsible for recruitment in public services to make selection in the light of the principles laid down in this judgment. The judgments under appeal are modified to the extent above. There is no order as to costs.