Holding

The 6% hill and Uttarakhand reservation is illegal, and the 15% special reservation must be treated as compartmentalised horizontal reservation, with remedial creation of 34 additional O.C. seats.

Summary

The Supreme Court examined the admission process for medical courses in Uttar Pradesh where Lucknow University had applied a 15% horizontal reservation for five special categories (dependents of freedom fighters, children of soldiers, physically handicapped, hill area and Uttarakhand area) alongside vertical reservations for SC, ST and OBC. Petitioners argued that the special reservation seats were improperly allocated, disproportionately affecting open competition (O.C.) candidates, and that the 6% reservation for hill and Uttarakhand areas was illegal under Article 15(4). The Court held that the hill and Uttarakhand reservations constitute illegal reservations under Article 15(1) and that the 15% special reservation should be treated as compartmentalised horizontal reservation, not an overall one. It directed that the already finalised admissions not be disturbed but ordered the creation of 34 additional O.C. seats to remedy the prejudice, and laid down detailed guidelines for future reservation implementation. The writ petitions were disposed of with these directions.

Issues considered

The legality of the 6% reservation for hill and Uttarakhand areas under Article 15(1) versus Article 15(4).
Whether the 15% special reservation for five categories is an overall horizontal reservation or a compartmentalised one.
Whether the method of allocating special reservation seats, which resulted in 110 of 112 seats being taken from the O.C. quota, is constitutionally valid.
What remedial measures are appropriate for the prejudice caused to O.C. candidates.

Legislation cited

Constitution of Indias. Article 15, s. Article 16

Subjects

reservationhorizontal reservationvertical reservationArticle 15medical admissionsUttar Pradeshopen competitionspecial categoriescompartmentalised reservationillegal reservationguidelines

Judgment

(:
A ANIL KUMAR GUPTA, ETC.
v.
STATE OF UTTAR PRADESH AND ORS.

JULY 28, 1995

B [B.P. JEEVAN REDDY AND SUHAS C. SEN, JJ.]

Constitution of India, 1950: A1ticle 15.

ReseTVation for-Candidates belonging to hill and Uttranchal
C areas-Relatable toA1ticle 15(4) and not toA1ticle 15(1}-In addition to 27
percent for Other Backward Classes-Held:clearly illegal. Higher Education:
Admission to professional courses.

1
Medical Courses-R.eseTVation of seats--Ho1izontal rese1vations-Over-
all or compartmentalised:--Distinction explained-Guidelines for future selec-
D tion process-Laid down

The respondent Lucknow University had issued a notification calling
for applications for admission to medial courses in the State in accordance
with notification of May 17, 1994. The University subsequently issued a
corrigendum stating that the extent of reservation in favour of five
E categories viz. (1) actual dependents of freedom fighters--5% (2)
sons/daughters of soldiers/deceased/disabled in war - 2% (3) Physically
handicapped· 2% (4) candidates of hills areas· 3%. and (S) candidates of
Uttrakhand area • 3% (referred to as "Special categories") shall be horizon·
tal reservations and not vertical reservations. Vertical reservations for
F Scheduled Castes Candidates-21%, Scheduled Tribe Candidates· 2% and
other Backward Class Candidates • 27% have also been provided.

The respondent Lucknow University issued a corrigendum calling
upon the candidates applying under these special categories to specify to
which social reservation category do they belong. They were asked to
G specify whether they belonged to Scheduled Tribes, Scheduled .Castes,
Other Backward Classes or to open competition category, as the case may
be. Out of the 2130 candidates who had applied against the five special
reservation categories, only nine stated that they belong to Other Back-
ward Classes. None stated that they belong to Scheduled Tribes or
H Scheduled Castes which meant that, but for nine candidates, all the rest
396
AK. GUPTA v. STATE 397

applying under the aforesaid special categories were from the general/non- A
reserved category. 110 out of 112 special reservation candidates have been
accommodated only in O.C. category and none in the O.B.C., S.C. or S.T.
category.

Aggrieved by the above method of filling of seats the petitioners
preferred the present writ petitions. B

On behalf of the petitioners it was conte_nded that 110 seats were
taken away from the open competition category (0.C.), that the special
reservation seats are to be distributed proportionately among the vertical
reservation categories, and that only fifty four special category candidates C
ought to have been accommodated with open competition and not 110.

On behalf of the respondents it was contended that 110 candidates
belonging to special categories were first adjusted against O.C. category;
that 263 seats were filled by General candidates; and that reservation in
favour of special category is overall and not compartmentalised. D
Disposing of the writ petitions and laying down guidelines for future
selections, this Court.

HELD : 1.1. At the outset a glaring illegality may be mentioned which
bas not been raised in these writ petitions. Three percent of the seats have E
been reserved for candidates belonging to hill and Uttranchal areas which
are treated as horizontal reservations. The reservation of fifteen percent
of seats for special categories was on very high side. Two categories out of
them representing six percent out of fifteen percent are really reservations
under Article 15(4), wrongly treated as reservations under Article 15(1). F
Even otherwise, the special reservation would be nine percent. [407-E,
414-G]

1.2. A separate horizontal reservation of six per cent of the seats in
favour of candidates from hill and Uttaranchal areas in addition to twenty
seven percent reservation in favour of O.B.C. is clearly illegal. [407-H] G

State of Uttar Pradesh v. Pradeep Tandon, [1975) 1 S.C.C. 267 and
Indra Sawhney and Ors. v. Union of India & Ors., [1992] Suppl. 3 S.C.C.
217, relied on.

2. In view of the ambiguous language employed in the corrigendum H
398 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A issued by the respondent Lucknow University. It is not possible to give a
definite answer to the question whether the horizontal reservations are
overall reservations or compartmentalised reservations. Where the seats
reserved for horizontal reservations are proportionately divided among
the vertical (social) reservations and are not inter-transferable, it would
be a case of compartmentalised reservations. [411-E]
B
3. In this very case, out of the total 746 seats, 112 seats (representing ·
fifteen percent) should be filled by special reservation candidates; at the
same time, the special reservation in favour of Other Backward Classes is
27% which means 201 seats for O.B.Cs.; if the 1/2 special reservation seats
C are also divided proportionately as between O.C., O.B.C., S.C. and S.T.,30
seats would be allocated to the O.B.C. category; in other words, thirty
special category students can be accommodated in the O.B.C. category; but
say only ten special reservation candidates,belonging to O.B.C. are avail-
able, then these ten candidates will, of course, be allocated among O.B.C.
quota but the remaining twenty seats cannot be transferred to O.C.
D ·category (they will be available for O.B.C. candidates only) or for that
matter, to any other category; this would be so whether requisite number
of special reservation candidates (56 out of 373) are available in O.C.
category or not; the special reservation would be a water tight compartment
in each of the vertical reservation classes (O.C., O.B.C., S.C. and S.T.). As
E against this, what happens in the over-all reservation is that while alfocat-
ing the special reservation students to their respective social reservation
category, the over-all reservation in favour of special reservation categories
has yet to be honoured. This means that the twenty remaining seats would
be transferred to O.C. category which means that the number of special
=
reservation candidates in O.C. category would be 56 + 20 76. Further, if
F no special reservation candidate belOnging to SC and S.T; is available then
the proportionate number of seats meant for special reservation candidates
in S.C. and S.T. also get transferred to O.C. category. The result would be
that 102 special reservation candidates have to be accommodated in the
O.C. category to complete their quota of 112. The converse may also hap-
G pen, which will prejudice the candidates hi the reserved categories. It is, of
·course, obvious that the inter se quota between O.C., O.B.C., S.C. and S.T.
will not be altered. [411-F-H, 412-A-D]

4. The revised notification says that "horizontal reservation be
granted in all medical colleges on total seats of all the courses ..." These
H words are being interpreted in two different ways by the parties; one says
AK GUPTA v. STATE 399

it is over-all reservation while other says it is compartmentalised. Para- A
graph 2 says that the candidates selected under the aforesaid special
categories "would be kept under the categories of Scheduled Cas-
tes/Scheduled Tribes/Other backward Classes/General to which they
belong. For example, if a candidate dependent on_ a freedom fighter
selected on the basis of reservation belongs to Schedul~ Castes, he will be B
adjusted against the seat reserved for Scheduled Castes". This is sought
to be read by the petitioners as affirming that it is a case of compartmen-
talised reservation. May be or may not be. It appears that while issuing
the said notification, the Government was not conscious of the distinction
between ove_rall horizontal reservation and compartmentalised horizontal
reservation. (412-E-G] C
5. It was wrong to direct the fifteen percent special reservation seats
to be filled first and then take up the O.C. (merit) quota (followed by filling
of O.B.C., S.C. and S.T. quotas). Since the revised notification issued by
the respondent provided for a different method of filling the seats, it has
contributed partly to the unfortunate situation where the entire special D
reservation quota has been adjusted almost exclusively against the O.C.
quota. (413-F,414-C]

6. The issue of corrigendum by the respondents was delayed exercise
which ought to have been undertaken at the beginning itself. Even the E
manner in which the seats have been filled up is faulty. The injustice done
to the open competition candidates has to be rectified to the extent feasible.
(415-C]
7. In the matter of admissions made pursuant to C.P.M.T. 1994, while
admissions already finalised shall not be disturbed, the Uttar Pradesh
Government shall create thirty four additional seats in the M.B.B.S. course
F
and admit thirty four students from the O.C. category against these seats.
If any seats are vacant they shall also be filled from the O.C. category alone.
This creation of additional seats is restricted to current admissions only
and shall not be a permanent feature. (415-D-G]
G
8. It is not possible to accommodate 54 students belonging to the O.C.
category as the factual basis for this is debatable in view of the ambiguous
language of the corrigendum.

9. The following guidelines are laid down for the future selection
process: H
400 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A (i) While providing horizontal reservations, the respondents should
specify whether the horizontal reservation is a compartmental one or an
overall one. In the interest.of avoiding any complications and intractable
problems, it would be better that in future the horizontal reservations are
compartmentalised. (412-H, 413-A, D]
B (ii) The notification inviting applications should itself state not only
the percentage of horizontal reservation(s) but should also specify the
number of seats reserved for them in each of the social rf!lliil!rvation
categories, viz; S.T., S.C., O.B.C. and O.C. If this is not done there is always
a possibility of one of the other vertical reservation category suffering
C prejudice. (413-D] •

(iii) The proper and correct course is to fill up the O.C. quota (50%),
on the basis of merit; then fill up each of the social reservation quotas, i.e.,
S.C., S.T., and O.B.C., the third step would be to find °'':t how many
candidates belonging to special reservations have been selected on the
D above basis. If the quota fixed for horizontal reservations is already
satisfied • in case it is an overall horizontal reservation • no further
question arises. But if it is not satisfied, the requisite number of special
reservation candidates shall have to be taken and adjusted/accommodated
against their respective social reservation categories by deleting the cor-
E responding number of candidates therefrom. (413-G-H, 414-A].

(iv) Ifit is a case of compartmentalised horizontal reservation, then
the process of verification and adjustment/accommodation as stated above
should be applied separately to each ofthe vertical reservations. In such
a case, the reservation of fifteen percent in favour of special categories,
F overall, may be satisfied or may not be satisfied. (414-B]

(v) The special reservations (horizontal reservations) should be kept
to the minimum. (414-G]

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 276 of
G .. 1995.
WITH

Writ Petition (C) No. 326 of 1995.

H (Under Article 32 of the Constitution of India.)
AK. GUPTA v. STAIB [B.P. JEEVAN REDDY, J.] 401

S.C. Gupta and Sunil K. Jain for the Petitioners. A
P.K. Jain for the Petitioner in W.P. (C) No. 326/95.

Pradeep Misra and Irshad Ahinad, for the Respondents.

The Judgment of the Court was delivered by
B
B.P. JEEVAN REDDY, J. These writ petitions highlight the faulty
manner in which reservations have been provided and implemented by the
Government of Uttar Pradesh and its authorities in the matter of admission
to medical courses for the year 1994-95. Though the dispute pertains to the
academic year 1994-95, we are told that the admissions have been made C
only in June-July, 1995 and are yet to be finalised in respect of certain
courses.

The story begins with the announcement of policy of reservation in
the matter of admission to medical courses issued by the Government on
May 17, 1994. According to this notification, sixty five percent of seats were D
reserved in favour of various classes/categories leaving only thirty five
percent for open competition (O.C.) category. The reservations provided
were to the following effect:

"1. Backward Class 27%
E
2. Hill Region 3%

3. Uttarakhand Region 3%

4. Scheduled Caste 21%

5. Scheduled Tribe 2% F
6. Real dependents of freedom fighters 5%

7. Son/Daughter of soldier died in war/
handicapped soldiers 2%
G
8. For Handicapped candidates 2%

65%

A further reservation in favour of women was also provided to the extent
of thirty percent in each of the above categories. The reservations so H
402 SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A provided were challenged by way of a writ petition in this Court under
Article 32 of the Constitution - Civil Writ Petition No. 777 of 1994 (Swati
Gupta v. State of Uttar Pradesh & Ors.). The contention of the petitioner
was that reservation of sixty five percent of seats was contrary to the
decision of this Court in Indra Sawhney and Ors. v. Union of India and
B Ors. (1992) Suppl. 3 S.C.C. 217 and, therefore, void. Pending the said writ
petition, the Government issued a notification on December 17, 1994
modifying the reservation policy contained in the notification of May 17,
1994. It would be appropriate to set out the notification dated December
17, 1994 in its entirety:

"No.6550/Sec-14N-III.93
c
From:
Ravindra Kumar Sharma
Sachiv,
Uttar Pradesh Shasan
D
To : Director General,
Medical Education, Training,
U.P. Lucknow.

Medical Section - 14 Lucknow dated 17.12.94
E
Sub: Reservation in seats of M.B.B.S./B.D.S./B.H.M.S./B.A.M.S./
B.U.M.S. Courses to be filled through C.P.M.T. in State
Allopathic Medical Colleges/KG. Medical College, Luck-
now/All State Homeopathic/Ayurvedic/Unani Medical Col-
leges.
F
Sir;

In continuation of G.O. No. 2697/Sec/-14N-94/lll/93 dated
17.5.94, on the above subject, I am directed to say clarifying the
G Govt. policy that horizontal reservation be granted in all medical
colleges on total seats of all the courses to be filled through
combined Pre-Medical Test (CPMT) 1994 as given below:

1. Real dependents of freedom fighters 5%

H 2. Sons/daughters of deceased/disabled soldiers 2%
AK. GUPTA v. STATE[B.P.JEEVAN REDDY,J.] 403

3. Physically handicapped candidates 2% A
4. Candidates belonging to hill areas 3%

5. Candidates belong to Uttaranchal areas 3%

2. The above reservation would be horizontal and the candidates B
of the abov~ categories, selected on the basis of merit, would be
kept under the categories of Scheduled Castes/Scheduled
Tribes/Other Backward Classes/General to which they belong. For
example, if a candidate dependent on a Freedom Fighter selected
on the basis of reservation belongs to reserved for scheduled caste,
(he will be adjusted against the seat reserved for S.C.?) Similarly, C
if a physically handicapped candidate selected on the basis of
reservation belongs to other backward class or general category,
he would be adjusted against the seats reserved for other backward
classes or general category.

3. I am also directed to say that vertical reservation shall be granted D
in all medical colleges on total seats of all courses to be filled
through C.P.M.T. 1994 as given below:

(a) Scheduled Caste Candidates - 21 % 30 seats

(b) Scheduled Tribe Candidates - 21 % in each category E

(c) Other Backward Class candidates - 27% reserved for ladies

4. 'Other backward Classes' mean the classes mentioned in An-
nexure-1 of Notification No. 488/XVll/-V-1-l (Ka) 8-1994 dated
23.3.94 notified by Vidhiyaka Anubhag, Uttar Pradesh Adhiniyam
F
No. 4/1994. The candidates of backward classes mentioned in
Annexure-11 of the aforesaid Adhiniyam would not be entitled for
the reservation.

5. In am also directed to clarify that if a candidate of reserved G
category, mentioned in para 3 above, is selected alongwith general
category candidates on the basis of merit, he shall not be adjusted
against reserved seats, as G.O. in this regard has already been
issued. So, 50% seats of general category shall be filled on the
basis of merit prior to filling of reserve seats mentioned in para 3
~~ ff
404. SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A Please ensure strict compliance of these orders.

Yours faithfully,
Sd/-
Ravindra Kumar Sharma
Sachiv"
B
This revised notification was brought to the notice of this Court at
the hearing of the aforesaid writ petition. After noticing both the aforesaid
notifications this Court (the Bench crnnprising R.M. Sahai, J. and one of
us, Suhas C.Sen, J.) observed as follows :
c
"2. Reservation of 65% resulting in reducing the general category
of 35% was undoubtedly violative of Article 16. Further by reserv-
ing 30% of the general seats for ladies the general category shrank
to 5%. But these glaring infirmities have been rectified by the
D amended circular. Reservation of 30% for ladies has now been
confined to para 3 of the amended circular. Dr. Dhavan, learned
Senior Counsel appearing for the State clarified that he has in- ·
_structions to make a statement on the amended circular that now
there is no reservation for ladies in the general category.

E 3. Similarly, the other defect in the circular reserving 35% seats
for general category has been removed. The vertical reservation is
now 50% for general category and 50% for Scheduled Castes,
Scheduled Tribes and Backward Classes. Reservation of 15% for
various categories mentioned in the earlier circular which reduced
F the general category to 35% due to vertical reservation has now
been made horizontal in the amended circular extending it to all
seats. The reservation is no more in general category. The amended
circular divides all the seats in CPMT into two categories - one,
general and other reserved. Both have been allocated 50%. Para
2 of the circular explains that candidates who are selected on merit
G and happen to be of the category mentioned in para 1 would be
liable to be adjusted in general or reserved category depending on
to which category they belong, such reservation is not contrary to
what was said by' this Court in Indra Sawhney. Whether the reser-
vation for such persons should have been made or not was not
H challenged, therefore, this Court is not required to examine it.
AK.GUPTA v. STATE[B.P.JEEVANREDDY,J.J 405

4. In the result this petition is disposed of by directing that in view A
of the circular issued by the Government on 17.12.1994 clarified
by para 2 the grievance of the petitioner cannot be said to have
been survived. The interim order passed by this Court staying the
declaration of results is discharged."

This decision was rendered on February 2, 1995. B

On February 14, 1995 the Government issued a clarification stating:

"I have been directed to say that partly modifying the G.O. No.
6550-Sec. 14-V/111/93 dt. 17.12.94 on the above subject, clause C
para 3 of the said G.O. shall be read as under:

3. I am also directed to say that vertical reservations shall be
granted in all Medical Colleges on total seats of all Courses to be
filled through C.P.M.T. 1994.
D
(i) Scheduled Caste Candidates 21%

(ii) Scheduled Tribes Candidates 2%

(iii) Other Backward Class Candidates 27%
E
· The effect of this clarification is that reservation in favour of women
has been removed from all the reserved categories.

The Lucknow University had issued a notification calling for applica-
tions for admissions to medical courses in the State in accordance with the
notification of May 17, 1994. After the decision of this Court in Swati Gupta F
and in the light of the revised notification by the Government, as also the
clarification issued on February 14, 1995, the University issued a corrigen-
dum stating that the reservation in favour of five categories, viz., (1) actual
dependents of freedom fighters - 5% (2) sons/daughters of sol-
diers/deceased/disabled in war - 2% (3) physically handicapped - 2%, (4) G
candidates of hill area - 3% and (5) candidates of Uttarakhand area - 3%
(hereinafter referred to as in this judgment as "Special Categories") shall
be horizontal reservations and not vertical reservations. The corrigendum
stated:

"... following Horizontal reservation has been provided on the total H
406 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A seats of all the courses of every Medical College to be filled on
the basis of Combined Pre-Medical Test, 1994:

(1) Actual dependents of freedom fighters 5%

(2) Sons/daughters of Soldiers/deceased/
B disabled in War 2%

(3) Physically Handicapped 2%

(4) Candidates of Hill Area 3%

c (5) Candidates of Uttarakhand Area 3%

2. The above reservation will be horizontal and the candidates of
above categories, selected on the basis of merit, would be kept
under the categories of Schedule Caste/Schedule Tribe/Other
D backward Class/General to which they belong.

3. It is also informed that on total number of seats of every course
in every Medical College through C.P.M.T. 1994. The following
vertical reservations have been provided :

E (1) Scheduled Caste Candidates 21%

(2) Scheduled Tribe Candidates 2%

(3) Other Backward Class Candidates 27%

F 4. It is also clarified that if any candidate belonging to Schedule
Caste/Schedule Tribe/Other Backward Class categories is selected
in open competition on the basis of merit, then he will not be
adjusted in the seats reserved for concerned category. Therefore
after filling the seats on the basis of horizontal reservation, the
unreserved seats will be filled on the basis of merits and thereafter
G reserved seats for Schedule Caste/Schedule Tribe/Other Backward
Class will be filled.

5. As per above mentioned provisions the proVisions for reserva-
tions in application form and important guidelines for C.P.M.T.
H 1994 issued earlier will deemed to be modified accordingly.
AK GUPTA v. STATE(B.P.JEEVANREDDY,J.] 407

6. Therefore, it is desired from the candidates falling under A
horizontal reservations that if they belong to Scheduled Caste,
Scheduled Tribe or Other Backward Class Category, then they
should send Caste Certificate on the following proforma giving his
Roll number and examination details to the Registrar, Lucknow
University by 28.2.95. If Caste Certificate is not received within the B
prescribed period, then it will be deemed that concerned can-.
didates belongs to the General Category. Once a Caste Certificate
is furnished same cannot be changed subsequently. The prescribed
proforma of Caste Certificate is being sent to the concerned
candidates falling under horizontal reservation through UPC for
necessary action as aforesaid. In case proforma of Caste Certificate C
is not received by post, then same can be obtained by contacting
Registrar, Lucknow University."

In accordance with the procedure aforesaid admissions have been
made which are questioned in the present two writ petitions. D
AC the outset, we may mention a glaring illegality which has unfor-
tunately not been raised in these writ petitions but is self-evident from the
decisions of this Court. Under the revised notification dated December 17,
1994, three percent of the seats have been reserved for candidates belong-
ing to hill areas and another three percent in favour of candidates belong- E
ing to Uttaranchal areas. These two reservations along with the
reservations in favour of physically handicapped, children of deceased/dis-
abled soldiers and dependents of freedom fighters are treated as horizontal
reservations. In other words, the reservations in favour of hill areas and
Uttaranchal areas are understood· and treated as reservations relatable to
Article 15(1) of the Constitution and not as reservations in favour of F
"socially and educationally backward classes of citizens or for the
Scheduled Castes and Scheduled Tribes" within the meaning of Article
15(4) of the Constitution. It has been held by this Court in State of Uttar
Pradesh v. Pradeep Tandon, [1975) 1 S.C.C. 267 that the reservation of seats
in favour of candidates belonging to hill areas and Uttarakhand areas are G
reservations within the meaning of Article 15(4) of the Constitution, i.e.,
they are reservations in favour of socially and educationally backward
classes of citizens. This Court found that "the State has established that the
people in hill and Uttarakhand areas are socially and educationally back-
ward classes of citizens". It, therefore, follows that a separate horizontal
reservation of six percent of the seats in favour of candidates from hill areas H
408 SUPREME COURT REPORTS [1995) SUPP. 2 S.C.R.

A and Uttaranchal apart from and in addition to twenty seven percent
reservation in favour of other backward class candidates is clearly illegal.
Though this contention has not been specifically raised in these writ
petitions, we must yet take notice of this circumstance while makiug the
appropriate directions in these matters. It is indeed surprising that the
State of Uttar Pradesh which is a party to the above decision has failed to
B bear it in mind. The said decision has also been referred to approvingly,
in Indra Sawhney. The State of Uttar Pradesh shall keep this in mind for
future selections as also in respect of those which may be now under way
and make necessary corrections.

We may now turn to the contentions raised in the writ petition.
c
In the initial notification calling for applications, the fifteen percent
special reservations were treated as vertical reservations along with reser-
vations in favour of Other Backward Classes, Scheduled Castes and
Scheduled Tribes. Applications were accordingly received. But with the
D issuance of the revised notification of December 17, 1994, the decision of
this Court in Swati Gupta and the clarification contained in the letter dated
February 14, 1995, these special reservations became horizontal reserva-
tions. Accordingly, a corrigendum was issued by the Lucknow University
calling upon the candidates belonging to these special categories to specify
to which social reservation category they belong. In other words, the
E candidates who had applied under any of the said special reservations were
asked to specify whether they belong to Scheduled Tribes, Scheduled
Castes, Other backward Classes or to open competition category, aS the
case may be. It is stated that the candidates did indicate the same. Accord-
ing to the counter-affidavit now filed on behalf of the respondents, it
appears that out of 2130 candidates who had applied against the five
F special reservation categories only nine stated that they belong to Other
Backward Classes. None stated that they belong to Scheduled Tribes or
Scheduled Castes which meant that but for nine candidates, all the rest
appiying under the aforesaid special categories were from the generaVnon-
reserved category. As we shall indicate presently, 110 out of 112 special
G reservation candidates have been accommodated only in O.C. category and
none in the O.B.C., S.C. or S.T. category.

Now, coming to the manner in which the said two-way reservations,
viz., social reservations (vertical reservations) and special reservations
(horizontal reservations) have been implemented, a few facts may be
H noticed. In the counter-affidavit filed by the respondent (sworn-to by Sri
- AK. GUPTA v. STATE [B.P. JEEVAN REDDY, J.] 409

G.K. Bajpai) it is stated that the total number of seats available in M.B.B.S. A
course in the government colleges in Uttar Pradesh is 746. Fifteen percent
of the said number comes to 112 seats. In Para 16, it is stated :

"16. That in C.P.M.T. 1994 out of this 112 seats 101 students were
selected and all of them belong to the General Category. The
replying respondent filled up unreserved seats first and while doing B
so, 101 students selected on the basis of horizontal reservation
since they belong to General Category, hence they have to be
adjusted against unreserved seats. 9 belonging to Other Backward
Classes Category has secured equivalent marks as General Can-
didates and thus were selected on merits. These candidates have C
been adjusted against unreserved category. The Roll number,
names and total marks out of 1200 of these candidates are as
follows:

1. 33936 Vinay Kumar Gupta
s/o J.P. Gupta 974/1200 D
2. 16678 Sharad Candra
s/o B.S. Yadava 971/1200

3. 28415 Ram Yash Singh Yadava
s/o S.C.S. Yadava 957/1200 E
4. 10506 Neeraj Kumar
s/o O.P. Yadava 950/1200

5. 60497 Zafar Neyas 947/UOO
F
6. 47946 Vishal Singh
s/o Y. Singh 947/1200

7. 47684 Rohit Yadava
s/o V.S. Yadava 1003/1200
G
8. 15633 Monica Yadava
s/o S.K. Yadava 954/1200

9. 57620 Mohd. Muddasir 944/1200

The remaining 263 seats were filled through General candidates H
410 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R. ...
A and last candidate selected has secured 891 marks out of 1200
marks. 201 candidates of Other backward Classes were selected
against reserved seats 157 against seats reserved for Scheduled
Castes and 15 against seats reserved for Schedule Tribe. Similarly
same procedure was applied in all the categories. Therefore, the
contention of the petitioner that only 36% seats are filled with
B
General Candidates is wrong. A photostat copy of tabulated result
is being filed herewith and marked is Anne.xure R-IV to to this
affidavit."

A reading of Para 16 makes it clear that the authorities in- charge of
c making admissions first took up the special category reservations and filled
them up. Of the 112 candidates, 101 were from "611at may be called for the
sake of convenience, 'unreserved category' while nine candidates belonged
to Other Backward Class category. But it appears that inasmuch as the said
nine candidates belong to Other Backward Classes had secured equal
D marks with the general candidates and were accordingly selected on merit
'in the O.C. quota, they were treated as Open competition candidates. The
result was that out of 112 seats reserved for special categories, 110 seats
were taken away from the Open competition (O.C.) category, thus leaving ~

only 263 seats for the general candidates, i.e., O.C. candidates not belong-
ing to any of the special reservations. It is the above method of filling of
E seats that has been challenged in these writ petitions.

The contention of the learned counsel for the petitioners is two fold
: (i) by virtue of the revised notification of December 17, 1994, the decision
of this Court in Swati Gupta and the corrigendum notification issued by
F the Lucknow University, it is clear that the special reservation seats are to
be distributed and allocated proportionately among the social, i.e., vertical
reservation categories. Had it been so done, only fifty six candidates
belonging to special reservation categories could be accommodated in the
O.C. category. But, the respondents have accommodated 110 special reser-
G vation candidates in the O.C. category, an excess of fifty four seats. These
fifty four seats must be taken away from the special reservation categories
and allotted to O.C. candidates not belonging to any special reservation r •

category. (ii) The procedure prescribed in the aforesaid revised notification
for filling up the vacancies is equally illegal which has also resulted in the
H dimunition of seats available for O.C. category. The admissions should be
AK. GUPTA v. STATE[B.P.JEEVANREDDY,J.] 411

re- done thoroughly to rectify the said error. A

On the other hand, the learned counsel for the respondents justify
the procedure prescribed in the revised notification for making the admis-
sions. With respect to the first contention of the learned counsel for the
petitioners, the submission of the learned counsel for the Lucknow Univer-
sity and the State of Uttar Pradesh is that the fifteen percent reservation
B
in favour of special categories (special reservation) is an overall reservation
and not a compartmentalised reservation. They submit that these special
reservations are not divided proportionately among the vertical (social)
reservation categories and, therefore, these special reservation candidates
have to be provided fifteen percent of the total seats (i.e., 112 seats) overall, c
whether by adjusting them against any of the sociaVvertical reservations or
otherwise.

The question is which of the above interpretations is the correct one
having regard to the language employed in the concerned notifications? D

On a careful consideration of the revised notification of December
17, 1994 and the aforementioned corrigendum issued by the Lucknow
University, we are of the opinion that in view of the ambiguous language
employed therein, it is not possible to give a definite answer to the question
whether the horiZontal reservations are overall reservations or compartmen- E
talised reservations. We may explain these two expressions. Where the seats
reserved for horizontal reservations are proportionately divided among the
vertical (social) reservations and are not inter-transferable, it would be a
case of compartmentalised reservations. We may illustrate what we say:
Take this very case; out of the total 746 seats, 112 seats (representing F
fifteen percent) should be filled by special reservation candidates; at the
same time, the social reservation in favour of Other Backward Classes is
27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats
are also divided proportionately as between O.C., O.B.C., S.C. il;nd S.T., 30
seats would be allocated to the O.B.C. category; in other words, thirty
special category students can be accommodated in the O.B.C. category; G
but say only ten special reservation candidates belonging to O.B.C. are
available, then these ten candidates will, of course, be allocated among
O.B.C. quota but the remaining twenty seats cannot be transferred to O.C.
category (they will be available for O.B.C. candidates only) or for that
matter, to any other category; this would be so whether requisite number H •
412 SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.
....
A of special reservation candidates (56 out of 373)are available in O.C.
category or not; the special reservation would be a water tight compart-
ment in each of the vertical reservation classes (O.C., O.B.C., S.C. and
S.T.). As against this, what happens in the over-all reservation is that while
allocating the special reservation students to their respective social reser-
vation category, the over-all reservation in favour of special reservation
B categories has yet to be honoured. This means that on the above illustra-
tion, the twenty remaining seats would be transferred to O.C. category
which means that the number of special reservation candidates in O.C.
category would be 56 + 20 = 76. Further, if no special reservation candidate
belonging to S.C. and S.T. is available then the proportionate number of
c seats meant for special reservation candidates in S.C. and S.T. also get
transferred to O.C. category. The result would be that 102 special reserva-
tion candidates have to be accommodated in the O.C. category to complete
their quote of 112. The converse may also happen, which will prejudice the
candidates in the reserved categories. It is, of course, obvious that the inter
D se quota between O.C., O.B.C., S.C. and S.T. will not be altered.

Now coming to the revised notification of December 17, 1994, it says
that "horizontal reservation be granted in all medical colleges on total seats
of all the courses ... ". These words are being interpreted in two different
ways by the parties; one says it is over-all reservation while other says it is
E compartmentalised. Paragraph 2 says that the candidates selected under
the aforesaid special categories "would be kept under 'the categories of
Scheduled Castes/Scheduled Tribes/Other backward Classes/General to
which they belong. For example, if a candidate dependent on a freedom
fighter selected on the basis of reservation belong to Scheduled Castes, he.
F · will be adjusted against the seat reserved for Scheduled Castes". This is
sought to be read by the petitioners as affirming that it is a case of
compartmentalised reservation. May be or may not be. It appears that
while issuing the said notification, the Government was not conscious of
the distinction between overall horizontal reservation and compartmen-
G talised horizontal reservation. At any rate, it may not have had in its
contemplation the .situation like the one which has arisen now. This is
probably the reason that this aspect has not been stated in clear terms.

It would have been better - and the respondents may note this for
H their future guidance - that while providing horizontal reservations, they
AK. GUPTA v. STATE [B.P. JEEVAN REDDY, J.] 413

should specify whether the horizontal reservation is a compartmental one A
or an overall one. As a matter of fact, it may not be totally correct to
presume that the Uttar Pradesh Government was not aware of this distinc-
tion between "overall horizontal reservation" and "compartmentalised
horizontal reservation", since it appears from the judgment in Swati Gupta
that in the first notification issued by the Government of Uttar Pradesh on B
May 17, 1994, the thirty percent reservation for ladies was split up into each
of the other reservations. For example, it was stated against backward
classes that the percentage of reservation in their favour was twenty seven
percent but at the same time it was stated that thirty percent of those seats
were reserved for ladies. Against every vertical reservation, a similar C
provision was made, which meant that the said horizontal reservation in
favour of ladies was to be a "compartmentalised horizontal reservation".
We are of the opinion that in the interest of avoiding any complications
and intractable problems, it would be better that in future the horizontal
reservations are compartmentalised in the sense explained above. In other D
words, the notification inviting applications should itself state not only the
percentage of horizontal reservation(s) but should also specify the number
of seats reserved for therii in each of the social reservation categories; viz.,
S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility
of one or the other vertical reservation category suffering prejudice as has E
happened in this case. As pointed out hereinabove, 110 seats out of 112
seats meant for special reservations have been taken away from the O.C.
category alone - and none from the O.B.C. or for that matter, from S.C.
or S.T. It can well happen the other way also in a given year.

Now, coming to the correctness of the procedure prescribed by the F
revised notification for filling up the seats, it was wrong to direct the fifteen
percent special reservation seats to be filled up first and then take up the
... O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T. quotas) .
The proper and correct course is to first fill up the O.C. quota (50%) on
the basis of merit; then fill up each of the social reservation quotas, i.e., G
, S.C., S.T. and B.C.; the third step would be to find out how many can-
didates belonging to special reservations have been selected on the above
basis. If the quota fixed for horizontal reservations is already satisfied - in
case it is an over-all horizontal reservation no further question arises. But
if it is not so satisfied, the requisite number of special reservation can- H
414 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A didates shall have to be taken and adjusted/accommodated against their
respective social reservation categories by deleting the corresponding num-
ber of candidates therefrom. (If, however, it is a case of compartmentalised
horizontal reservation, then the process of verification and adjustment/ac-
commodation as stated above should be applied separately to each of the
vertical reservations. In such a case, the reservation of fifteen percent in
B
favour of special categories, overall, may be satisfied or may not be
satisfied.) Because the revised notification provided for a different method
of filling the seats, it has contributed partly to the unfortunate situation
where the entire special reservation quota has been allocated and adjusted
almost exclusively against the O.C. quota.
c
In this connection, we must reiterate what this Court has said i~
Indra Sawhney. While holding that what may be called "horizontal reserva-
tion" can be provided under clause (1) of Article 16, the majority judgment
administered the following caution in para 744: "(B)ut at the same time,
D one thing is clear. It is in Vyry exceptional situation - and not for all and
sundry reasons - that any further reservations of whatever kind, should be
provided under clause (1). In such cases, the State has to satisfy, if called
upon, that making such a provision was necessary (in public interest) to
redress the specific situation. The very presence of clause (4) should act
as a damper upon the propensity to create further classes deserving special
E treatment. The reason for saying so is very simple. If reservations are made
both under clause (4) as well as under (1), the vacancies available for free
competition as well as reserved categories would be correspondingly whit-
tled down and that is not a reasonable thing to do". Though the said
observations were made with reference to clauses (1) and (4) of Article 16,
F the same apply with equal force to clauses (1) and (4) of Article 15 as well.
In this case, the reservation of fifteen percent of seats for special categories
was on very high side. As pointed out above, two categories out of them
representing six. percent out of fifteen percent are really reservations under
Article 15(4), wrongly treated as reservations under Article 15(1). Even .
G otherwise, the special reservation would be nine percent. The respondents
would be well advised to keep in mind the admonition administered by this
Court and ensure that the special reservations (horizontal reservations) are
kept at the minimum.

Having pointed out the errors in the rule of reservation and its
H implementation, the question arises what should be done now? Should we
AK. GUPTA v. STATE [B.P.JEEVAN REDDY,J.] 415

interfere with the admissions already finalised? We think it inadvisable to A
do so. It may be remembered that the admissions now finalised (in June-
July, 1995) are really the admissions which ought to have been finalised
one year back. The delay has occurred on account of the first faulty
notification (issued on May 17, 1994).When a writ petition was filed in this
court-probably some writ petitions in the High Court also - the Govern-
ment realised its mistake and issued the revised notification on December
B
17, 1994. It dropped the reservation in favour of women in stages. The
University had then to issue a corrigendum a<>king the special category
candidates to indicate their social status. This was a delayed exercise which
ought to have been undertaken at the beginning itself. Even the manner in
which the seats have been filled up, as indicated above, is faulty. What we C
have laid down herein is more for the purpose of future guidance for the
respondents. At the same time, we have to rectify the injustice done to the
open competition candidates in the admissions in question, to the extend
feasible. Accordingly, we direct that in the matter of admissions made
pursuant to C.P.M.T. 1994, while the admissions already finalised shall not D
be disturbed, the Uttar Pradesh Government shall create thirtyfour addic
tional seats in the M.B.B.S. course and admit thirty four students from the
O.C. category against those seats. If any seats are vacant as on today, they
shall also be filled from the O.C. category alone. (It is made clear that O.C.
category means the merit list and no distinction shall be made among the
candidates in the O.C. list on the basis of their social status because it is E
well settled that even a S.T./S.C./O.B.C. candidate is entitled to obtain a
seat in the O.C. category on the basis of his merit.) The counsel for. the
petitioners complain that fifty four students belonging to O.C. category

., have been deprived on account of respondents' faulty actions and that it
should be directed to be made up. We cannot agree. The factual basis of F
this submission is debatable in view of the ambiguity mentioned herein-
before. We have directed creation of thirty four seats (making a total of
780 seats this year) having regard to all the facts and circumstances of the
case. This creation of additional seats is restricted to current admissions
only and shall not be a permanent feature. The Uttar Pradesh Govern-
ment/concerned .authorities shall allocate the said thirty four additional G
seats appropriately among the government medical colleges an~ make
admissions thereto as early as possible. .,
·,· 1 •

We hope and. trust that the respondents ,will ensure 1that a similar
situation does not arise for the ensuing admissions~ ,, ' H
416 SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

A The writ petitions are disposed of with the above terms. No costs.

A copy of this judgment shall be communicated to the Chief
Secretary, Government of Uttar Pradesh and the Secretary, Medical
Education and Training, Government of Uttar Pradesh eo nomine (i.e., by
their designation) for their attention and implementation.
B
v.s.s. Petitions disposed of.

fl