BHARAT SANCHAR NIGAM LIMITED & ANR.versusSANDEEP CHOUDHARY & ORS.

1002           SUPREME COURT
                         [2022]REPORTS
                                4 S.C.R. 1002              [2022] 4 S.C.R.


 A             BHARAT SANCHAR NIGAM LIMITED & ANR.
                                       v.
                      SANDEEP CHOUDHARY & ORS.
                         (Civil Appeal No. 8717 of 2015)
 B
                                APRIL 28, 2022
               [M. R. SHAH AND B. V. NAGARATHNA, JJ.]
              Constitution of India, 1950 – Arts. 14, 16 and 142 –
 C     Reservation in employment – Whether in a case where the reserved
       category candidates secured more marks than the general category
       candidates, such reserved category candidates will have to be first
       adjusted in the general category pool and they shall be considered
       for appointment in the general category pool or against the
       vacancies meant for reserved category candidates – Held: The
 D
       reserved category candidates securing higher marks than the last
       of the general category candidates are entitled to get seat/post in
       unreserved categories – Thus, two candidates belonging to OBC
       category, were required to be adjusted against the general category
       as they were more meritorious than the last of the general category
 E     candidates – Consequently, after considering their appointments
       in the general category, the seats meant for reserved category were
       required to be filled in from the remaining reserved category
       candidates on merit such as Respondent No. 1 – However, insertion
       of the two OBC candidates into general category select list may
 F     unsettle the entire selection process resulting in expulsion of two
       general category candidates working since long – Therefore, to
       strike a balance, the two candidates from OBC category must be
       treated in general category seats and Respondent No. 1 shall be
       appointed against the reserved category seats with the seniority
       from the date of appointment of general category candidates – At
 G     same time, the candidates already appointed in general category
       shall not be removed – Constitution of India – Art. 142.
             Words and Phrases – Difference between “horizontal
       reservation” and “vertical reservation” explained.
 H
                                      1002
    BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                    1003
                 CHOUDHARY & ORS.

      Dismissing the appeal, the Court                                A
      HELD: 1.1. Candidates belonging to any of the vertical
reservation categories are entitled to be selected in “open or
general” category and if such candidates belonging to reserved
categories are entitled to be selected on the basis of their
own merit, their selection cannot be counted against the quota        B
reserved for the categories that they belong. [Para 8.5]
[1018-G-H]
      1.2. The reserved category candidates securing higher
marks than the last of the general category candidates are entitled
to get seat/post in unreserved categories. It is further observed     C
and held that even while applying horizontal reservation, merit
must be given precedence and if the candidates, who belong to
SCs, STs and OBCs have secured higher marks or are more
meritorious, they must be considered against the seats meant
for unreserved candidates. It is further observed that the 19         D
candidates belonging to reserved categories can as well stake
claim to seats in unreserved categories if their merit and position
in the merit list entitles them to do so. [Para 8.6][1019-A-C]
      2. In the present case, the two candidates belonging to
OBC category, were required to be adjusted against the general        E
category as admittedly they were more meritorious than the last
of the general category candidates appointed and their
appointments could not have been considered against the seats
meant for reserved category. Consequently, after considering their
appointments in the general category, the seats meant for
                                                                      F
reserved category were required to be filled in from and amongst
the other remaining reserved category candidates on merit such
as respondent No.1. If such a procedure would have been
followed, the original applicant – respondent No.1 would have
got appointed on merit in the reserved category seats in the
vacancy caused due to the above procedure. However, by                G
reshuffling and on insertion of two OBC candidates into general
category select list, two general category candidates already
appointed shall have to be expelled and/or shall have to be
removed, who are working since long and it may unsettle the
                                                                      H
1004           SUPREME COURT REPORTS                    [2022] 4 S.C.R.


 A     entire selection process. Therefore, to strike a balance and to
       ensure that the two general category candidates, who are already
       appointed will not have to be removed and at the same time,
       respondent No.1 – original applicant being a reserved category
       candidate also gets accommodated, if he is so appointed, in
       exercise of the powers under Article 142 of the Constitution of
 B
       India, it is ordered that on reshuffling and on respondent No.1 –
       original applicant being appointed now against the reserved
       category seats and while the other two candidates belonging to
       OBC category, to be treated in the general category seats, two
       candidates already appointed and belonging to general category
 C     shall not be removed. However, respondent No.1 shall get the
       seniority from the date of appointment of general category
       candidates who were having lesser merit than the aforesaid two
       reserved category candidates. [Para 9][1019-C-H; 1020-A-D]
            Indra Sawhney v. Union of India 1992 Supp (3) SCC
 D          217 : [1992] 2 Suppl. SCR 454 and R.K. Sabharwal v.
            State of Punjab (2007) 8 SCC 785 : [2007] 8 SCR 972
            – followed.
            Union of India v. Ramesh Ram (2010) 7 SCC 234 :
            [2010] 6 SCR 698 – distinguished.
 E          Uttaranchal Public Service Commission v. Mamta Bisht
            (2010) 12 SCC 204 : [2010] 7 SCR 289; Ritesh R. Sah
            v. Y.L. Yamul (1996) 3 SCC 253 : [1996] 2 SCR 695;
            Saurav Yadav Vs. State of U.P. (2021) 4 SCC 542 and
            Sadhana Singh Dangi v. Pinki Asati (2022) 1 SCALE
 F          534 – relied on.
            Rajesh Kumar Daria v. Rajasthan Public Service
            Commission (2007) 8 SCC 785 : [2007] 8 SCR 972 –
            referred to.
                            Case Law Reference
 G
       [1992] 2 Suppl. SCR 454         followed          Para 2.7
       [2007] 8 SCR 972                followed          Para 2.7
       [2007] 8 SCR 972                referred to       Para 2.7

 H
     BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                            1005
                  CHOUDHARY & ORS.

[2010] 6 SCR 698                     distinguished        Para 4               A
[2010] 7 SCR 289                     relied on            Para 8.3
[1996] 2 SCR 695                     relied on            Para 8.4
(2021) 4 SCC 542                     relied on            Para 8.5
                                                                               B
(2022) 1 SCALE 534                   relied on            Para 8.6
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8717
of 2015.
      From the Judgment and Order dated 04.08.2014 of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition             C
No.14714 of 2013.
     Dr. Rajeev Dhavan, Sr. Adv., (Amicus Curiae), Gaurav Agrawal
(Amicus Curiae).
       Pradeep Kumar Mathur, Chiranjeev Johri, Ankur Rastogi, Advs.            D
for the Appellants.
      Puneet Jain, Ms. Christi Jain, Umang Mehta, Yogit Kamat, Ms.
Pratibha Jain, Advs. for the Respondents.
      The Judgment of the Court was delivered by
                                                                               E
      M. R. SHAH, J.
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 04.08.2014 passed by the High Court of Rajasthan at
Jodhpur in DBCWP No. 14714/2013, by which the High Court has
dismissed the said writ petition preferred by the appellants herein – Bharat   F
Sanchar Nigam Limited (hereinafter referred to as “BSNL”) and has
confirmed the judgment and order passed by the Central Administrative
Tribunal, Jodhpur Bench, Jodhpur (hereinafter referred to as the
“Tribunal”) in O.A. No. 159 of 2009 by which the learned Tribunal allowed
the said application preferred by the respondent No.1 herein – original        G
applicant and directed the appellant herein – BSNL to consider his
candidature if sufficient vacancies exist for placement of the candidates
of Other Backward Class and his candidature shall be considered against
the present or future vacancies on the OBC category after determining

                                                                               H
1006                 SUPREME COURT REPORTS                       [2022] 4 S.C.R.


 A     the vacancies as per rules, the appellant – BSNL has preferred the
       present appeal.
              2. The facts leading to the present appeal in nutshell are as under:-
              2.1 That the private respondent No.1 herein – original applicant
       applied for the post of Telecom Technical Assistants (TTAs) in pursuance
 B     to the notification dated 06.10.2008 issued by BSNL for filling up of
       TTA posts. The appointment was to be made by way of direct recruitment
       by open competitive examination in the Rajasthan Telecom Circle. The
       said advertisement further provided that the unit of recruitment shall be
       the respective Secondary Switching Area (SSA). The dispute in the
 C     present case is relating to the Ajmer SSA. In the Ajmer SSA, the
       vacancies were as follows:-




 D
             The recruitment was to be made by conducting a competitive
       examination of eligible candidates in an objective type paper of 200 marks.
       Clause 13of the advertisement provided that:-
              (i)      The minimum Qualifying marks in the paper would be 40%
 E                     for the candidates of unreserved category candidate, and
              (ii)     33% for candidates of reserved category.
             It so happened that in the exam which was conducted no person
       from general category candidate got more than 40% marks. However,
 F     four candidates from OBC category obtained more than 33% marks.
       The marks obtained by four OBC category candidates are as under:-
                               OBC selected candidates
               Name                        Marks (out of 200)      Percentage

 G       1.    Alok Kumar Yadav            79.75                   39.87

         2.    Dinesh Kumar                77                      38.5

         3.    Alka Saini                  72.5                    36.25

         4.    Ved Prakash                 68.5                    34.25
 H
     BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                             1007
            CHOUDHARY & ORS. [M. R. SHAH, J.]

      The original applicant – respondent No.1 herein, who got 68.25            A
marks was placed at Waiting List No.1 in the OBC category.
        2.2 On 01.06.2009, BSNL issued a circular/letter to all heads of
telecom circles, inter alia, stating that there has been poor pass percentage
of candidates in the TTA examination and number of vacancies had
remained unfilled. There was acute shortage of manpower and hence it            B
was decided to relax the qualifying marks by 10% for all candidates.
Accordingly, the qualifying marks were refixed at 30% for general
category and 23% for reserved category. Clauses (iii) & (v) of the said
letter provides as follows:-
      (iii)   Successful candidates, qualifying through normal standards        C
              in aggregate will rank enblock senior to those qualifying
              through relaxed standard in the merit list. However, the
              provisions of the Recruitment Rules will determine their
              inter-se seniority in the cadre.
       (v)    The Circles who have already announced the result but             D
              have not got adequate number of successful candidates,
              may further extend the merit/waiting list as per above
              instructions.
      2.3 After relaxation of minimum marks with 30% of general
category candidates, the following five candidates in general category          E
became eligible for appointment:-
                        OC selected candidates



                                                                                F




                                                                                G

      2.4 However, it so happened that one Alok Kumar Yadav and
Alka Saini, who were found to be more meritorious than the general
category candidates subsequently were found eligible to be appointed
                                                                                H
1008             SUPREME COURT REPORTS                           [2022] 4 S.C.R.


 A     against the reserved category – OBC. Therefore, the respondent No.1
       herein – original applicant, who was wait listed No.1 in OBC category,
       approached the Tribunal by way of application being O.A. No. 159 of
       2009 for a direction to prepare a fresh list for all candidates based on
       relaxed standard and act on the said combined merit list. It was, inter
       alia, pleaded that there cannot be two cut-off marks for a single selection.
 B
       It was submitted that there was an unreasonable classification by
       providing another set of cut-off marks and the action was discriminatory
       and violative of Articles 14 and 16 of the Constitution of India.
               2.5 It was the case on behalf of the original applicant that those
       two candidates belonging to OBC category, who were having more merit
 C
       were required to be adjusted against the general category seats and
       consequently the seats reserved for OBC category were required to be
       filled in from remaining reserved category candidates on merit.
              2.6 The Tribunal, after noticing the judgment of the Rajasthan
       High Court dated 09.02.2011 in S.B. Civil Writ Petition No.4948 of 2009,
 D
       disposed of the O.A. and directed BSNL to consider the candidature of
       the original applicant – respondent No.1 herein, if sufficient vacancies
       exist for placement of the candidates of OBC and further his candidature
       shall be considered against the present and future vacancies on OBC
       category.
 E
             2.7 Feeling aggrieved and dissatisfied with the judgment and order
       passed by the Tribunal, BSNL preferred the writ petition before the
       High Court and by the impugned judgment and order and by relying
       upon the decisions of this Court in the case of Indra Sawhney Vs.
       Union of India, 1992 Supp (3) SCC 217; R.K. Sabharwal Vs. State
 F     of Punjab, (2007) 8 SCC 785; and Rajesh Kumar Daria Vs.
       Rajasthan Public Service Commission, (2007) 8 SCC 785 has
       dismissed the said writ petition by observing that the BSNL should have
       given appointment to Mr. Alok Kumar Yadav and Mr. Dinesh Kumar
       (candidates belonging to OBC category) against the vacancies which
       were not reserved vertically in the event of shuffling the said two persons
 G
       to general category (admittedly both the aforesaid candidates have
       secured and/or have more merit than the general category candidates,
       who were appointed). The High Court has further observed that
       consequently the original applicant could have been selected against the

 H
    BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                           1009
           CHOUDHARY & ORS. [M. R. SHAH, J.]

vacancies reserved for the OBC. By observing so, the High Court has          A
dismissed the writ petition. Hence, BSNL has preferred the present appeal.
      3. We have heard Dr. Rajeev Dhavan alongwith Shri Gaurav
Agrawal, learned Amicus Curiae, Shri Pradeep Kumar Mathur, learned
counsel appearing on behalf of the BSNL and Shri Puneet Jain, learned
counsel appearing on behalf of respondent No.1.                              B
       4. Learned counsel appearing on behalf of BSNL has heavily
relied upon the decision of this Court in the case of Union of India Vs.
Ramesh Ram, (2010) 7 SCC 234 and submitted that as observed and
held by this Court, in a case, where reserved category candidates are
selected on merit and placed in the list of general category candidates,     C
they can be adjusted against reserved category vacancies in order to get
a service of higher choice at the time of service allocation. Learned
counsel appearing on behalf of BSNL has heavily relied upon paragraph
42 of the aforesaid decision.
       4.1 Relying upon the above decision, it is vehemently submitted       D
by the learned counsel appearing on behalf of the BSNL that the aforesaid
two candidates namely Mr. Alok Kumar Yadav and Mr. Dinesh Kumar
were rightly considered in the reserved category pool.
       4.2 It is submitted that if the view taken by the High Court is
accepted, in that case, the two OBC candidates, who secured more             E
marks than the relaxed cut-off marks of general category candidates
are adjusted in general category and thereby vacancies so created in the
OBC category would have to be filled in by respondent No.1 herein –
original applicant which would result in shuffling of the candidates and
would unsettle the entire selection process. It is further submitted by
learned counsel appearing on behalf of BSNL that the High Court has          F
failed to take note of the fact that vacancies in the general category
were only five and they were already filled in and therefore, insertion of
two OBC candidates into the general category select list would expel
two already selected candidates of general category who had secured
undisputedly more marks than the original claimant thereby unsettling        G
the entire selection process.
      4.3 Making above submissions and relying upon the above
decisions, it is prayed to allow the present appeal.

                                                                             H
1010            SUPREME COURT REPORTS                          [2022] 4 S.C.R.


 A             5. Dr. Rajeev Dhavan, learned Senior counsel, assisted by Shri
       Gaurav Agrawal, learned Amicus Curiae and Shri Puneet Jain, learned
       counsel appearing on behalf of respondent No.1 have vehemently
       submitted that as such the controversy in the matter is squarely covered
       by the decision of this Court in the case of Indra Sawhney (supra). It
       is submitted that the reserved category candidates having obtained more
 B
       marks than the last candidate in general category candidates will have
       to be adjusted against the general category quota and they were required
       to be considered in the general category pool, thereby the remaining
       candidates belonging to the reserved category were required to be
       appointed against the quota meant for reserved category. It is submitted
 C     that in the present case, those two candidates, namely, Mr. Alok Kumar
       Yadav and Mr. Dinesh Kumar, secured more marks than the last of the
       general category candidates selected and appointed and therefore those
       two candidates were required to be adjusted and/or considered against
       the general category pool. The BSNL considered the appointment of the
       aforesaid two candidates in the reserved category and thereby caused a
 D
       loss to the reserved category candidates, who could have been appointed
       if the aforesaid two candidates belonging to the reserved category would
       have been adjusted and/or appointed in the general pool. It is submitted
       therefore that the High Court has rightly directed to consider the
       candidature of respondent No.1 herein – original applicant, being a wait
 E     listed candidate in the reserved category.
             6. Heard the learned counsel for the respective parties at length.
              7. The short question which is posed for the consideration of this
       Court is:-

 F           “Whether in a case where the reserved category candidates
             secured more marks than the general category candidates, such
             reserved category candidates will have to be first adjusted in the
             general category pool and they shall be considered for appointment
             in the general category pool or against the vacancies meant for
             reserved category candidates?
 G
             8. While considering the aforesaid issue, few decisions of this
       Court on the above point are required to be referred to.
             8.1 In the case of Indra Sawhney (supra) in paragraph 812, it is
       observed and held as under:-
 H
    BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                               1011
           CHOUDHARY & ORS. [M. R. SHAH, J.]

         “812. We are also of the opinion that this rule of 50% applies          A
      only to reservations in favour of backward classes made under
      Article 16(4). A little clarification is in order at this juncture : all
      reservations are not of the same nature. There are two types of
      reservations, which may, for the sake of convenience, be referred
      to as “vertical reservations” and “horizontal reservations”. The
                                                                                 B
      reservations in favour of Scheduled Castes, Scheduled Tribes and
      Other Backward Classes [under Article 16(4)] may be called
      vertical reservations whereas reservations in favour of physically
      handicapped [under clause (1) of Article 16] can be referred to
      as horizontal reservations. Horizontal reservations cut across the
      vertical reservations — what is called interlocking reservations.          C
      To be more precise, suppose 3% of the vacancies are reserved in
      favour of physically handicapped persons; this would be a
      reservation relatable to clause (1) of Article 16. The persons
      selected against this quota will be placed in the appropriate
      category; if he belongs to SC category he will be placed in that
                                                                                 D
      quota by making necessary adjustments; similarly, if he belongs to
      open competition (OC) category, he will be placed in that category
      by making necessary adjustments. Even after providing for these
      horizontal reservations, the percentage of reservations in favour
      of backward class of citizens remains — and should remain —
      the same. This is how these reservations are worked out in several         E
      States and there is no reason not to continue that procedure.”
      8.2 In Rajesh Kumar Daria (supra), in paragraphs 8 to 11, it is
observed and held as under:-
          “8. We may also refer to two related aspects before considering
      the facts of this case. The first is about the description of horizontal   F
      reservation. For example, if there are 200 vacancies and 15% is
      the vertical reservation for SC and 30% is the horizontal reservation
      for women, the proper description of the number of posts reserved
      for SC, should be:”For SC : 30 posts, of which 9 posts are for
      women.” We find that many a time this is wrongly described                 G
      thus:”For SC : 21 posts for men and 9 posts for women, in all 30
      posts.” Obviously, there is, and there can be, no reservation
      category of “male” or “men”.
         9. The second relates to the difference between the nature of
      vertical reservation and horizontal reservation. Social reservations       H
1012      SUPREME COURT REPORTS                              [2022] 4 S.C.R.


 A     in favour of SC, ST and OBC under Article 16(4) are “vertical
       reservations”. Special reservations in favour of physically
       handicapped, women, etc. under Articles 16(1) or 15(3) are
       “horizontal reservations”. Where a vertical reservation is made in
       favour of a Backward Class under Article 16(4), the candidates
       belonging to such Backward Class, may compete for non-reserved
 B
       posts and if they are appointed to the non-reserved posts on their
       own merit, their number will not be counted against the quota
       reserved for respective Backward Class. Therefore, if the number
       of SC candidates, who by their own merit, get selected to open
       competition vacancies, equals or even exceeds the percentage of
 C     posts reserved for SC candidates, it cannot be said that the
       reservation quota for SCs has been filled. The entire reservation
       quota will be intact and available in addition to those selected
       under open competition category. (Vide Indra Sawhney [Indra
       Sawhney v. Union of India, 1992 Supp (3) SCC 217], R.K.
       Sabharwal v. State of Punjab [(1995) 2 SCC 745], Union of
 D
       India v. Virpal Singh Chauhan [ (1995) 6 SCC 684] and Ritesh R.
       Sah v. Y.L. Yamul [(1996) 3 SCC 253]. But the aforesaid principle
       applicable to vertical (social) reservations will not apply to horizontal
       (special) reservations. Where a special reservation for women is
       provided within the social reservation for Scheduled Castes, the
 E     proper procedure is first to fill up the quota for Scheduled Castes in
       order of merit and then find out the number of candidates among
       them who belong to the special reservation group of “Scheduled
       Caste women”. If the number of women in such list is equal to or
       more than the number of special reservation quota, then there is no
       need for further selection towards the special reservation quota.
 F
       Only if there is any shortfall, the requisite number of Scheduled
       Caste women shall have to be taken by deleting the corresponding
       number of candidates from the bottom of the list relating to Scheduled
       Castes. To this extent, horizontal (special) reservation differs from
       vertical (social) reservation. Thus women selected on merit within
 G     the vertical reservation quota will be counted against the horizontal
       reservation for women. Let us illustrate by an example:
             If 19 posts are reserved for SCs (of which the quota for
          women is four), 19 SC candidates shall have to be first listed in
          accordance with merit, from out of the successful eligible
 H        candidates. If such list of 19 candidates contains four SC
BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                             1013
       CHOUDHARY & ORS. [M. R. SHAH, J.]

    woman candidates, then there is no need to disturb the list by         A
    including any further SC woman candidate. On the other hand,
    if the list of 19 SC candidates contains only two woman
    candidates, then the next two SC woman candidates in
    accordance with merit, will have to be included in the list and
    corresponding number of candidates from the bottom of such
                                                                           B
    list shall have to be deleted, so as to ensure that the final 19
    selected SC candidates contain four woman SC candidates.
    (But if the list of 19 SC candidates contains more than four
    woman candidates, selected on own merit, all of them will
    continue in the list and there is no question of deleting the excess
    woman candidates on the ground that “SC women” have been               C
    selected in excess of the prescribed internal quota of four.)
     10. In this case, the number of candidates to be selected under
 general category (open competition), were 59, out of which 11
 were earmarked for women. When the first 59 from among the
 261 successful candidates were taken and listed as per merit, it          D
 contained 11 woman candidates, which was equal to the quota
 for “general category women”. There was thus no need for any
 further selection of woman candidates under the special
 reservation for women. But what RPSC did was to take only the
 first 48 candidates in the order of merit (which contained 11
 women) and thereafter, fill the next 11 posts under the general           E
 category with woman candidates. As a result, we find that among
 59 general category candidates in all 22 women have been selected
 consisting of eleven woman candidates selected on their own merit
 (candidates at Sl. Nos. 2, 3, 4, 5, 9, 19, 21, 25, 31, 35 and 41 of the
 selection list) and another eleven (candidates at Sl. Nos. 54, 61,        F
 62, 63, 66, 74, 75, 77, 78, 79 and 80 of the selection list) included
 under reservation quota for “general category women”. This is
 clearly impermissible. The process of selections made by RPSC
 amounts to treating the 20% reservation for women as a vertical
 reservation, instead of being a horizontal reservation within the
 vertical reservation.                                                     G

    11. Similarly, we find that in regard to 24 posts for OBC, 19
 candidates were selected by RPSC in accordance with merit from
 among OBC candidates which included three woman candidates.
 Thereafter, another five women were selected under the category
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1014            SUPREME COURT REPORTS                           [2022] 4 S.C.R.


 A           of “OBC women”, instead of adding only two which was the
             shortfall. Thus there were in all 8 women candidates among the
             24 OBC candidates found in the selection list. The proper course
             was to list 24 OBC candidates as per the merit and then find out
             number of woman candidates among them, and only fill the
             shortfall to make up the quota of five for women.”
 B
                                                           (emphasis supplied)”
              8.3 In the case of Uttaranchal Public Service Commission
       Vs. Mamta Bisht, (2010) 12 SCC 204, the High Court took the view
       that the reserved category candidate, on her own merit was entitled to
 C     be considered in the general category and she could not have been counted
       against the reserved category. While upholding the judgment of the High
       Court, this Court observed and held in paragraphs 3, 4, 13 and 15 as
       under:-
                 “3. Out of 42 posts, 26 were filled up by general category and
 D           16 by reserved category candidates. Some women candidates
             stood selected in the general category while others had been given
             the benefit of horizontal reservation being residents of Uttaranchal.
             Respondent 1, being aggrieved preferred Writ Petition No. 780 of
             2003 (M/B) in the High Court of Uttaranchal seeking quashment
             of select list dated 31-7-2003 mainly on the ground that women
 E           candidates belonging to Uttaranchal had secured marks making
             them eligible to be selected in the general category and had it
             been done so, Respondent 1 could have been selected in the
             reserved category being a woman of Uttaranchal. It had also
             been pleaded in the petition that some of the women candidates
 F           who not only claimed the benefit of horizontal reservation but
             have been selected giving the said benefit, did not submit their
             respective certificate of domicile at the time of filling up the
             application forms but they produced the said certificate at a later
             stage and it was accepted.

 G              4. The High Court accepted the first submission of Respondent
             1 after examining the record of selection and came to the
             conclusion that the last selected woman candidate who was given
             the benefit of horizontal reservation for Uttaranchal women had
             secured marks higher than the last selected candidate in the general
             category. Thus, the said candidate ought to have been appointed
 H
BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                            1015
       CHOUDHARY & ORS. [M. R. SHAH, J.]

 against the general category vacancy and Respondent 1 ought to           A
 have been offered the appointment giving her the benefit of horizontal
 reservation for Uttaranchal women. Hence, these appeals.
                                ***
    13. In fact, the High Court allowed the writ petition only on
 the ground that the horizontal reservation is also to be applied as      B
 vertical reservation in favour of reserved category candidates
 (social) as it held as under:
    ‘In view of the above, Neetu Joshi (Sl. No. 9, Roll No. 12320)
    has wrongly been counted by Respondent 3/Commission against
    five seats reserved for Uttaranchal Women General Category            C
    as she has competed on her own merit as general candidate
    and as the fifth candidate the petitioner should have been counted
    for Uttaranchal Women General Category seats.’
    Admittedly, the said Neetu Joshi has not been impleaded as a
 respondent. It has been stated at the Bar that an application for        D
 impleadment had been filed but there is nothing on record to show
 that the said application had ever been allowed. Attempt had been
 made to implead some successful candidates before this Court
 but those applications stood rejected by this Court.
    14. The view taken by the High Court on application of                E
 horizontal reservation is contrary to the law laid down by this
 Court in Rajesh Kumar Daria v. Rajasthan Public Service
 Commission [(2007) 8 SCC 785], wherein dealing with a similar
 issue this Court held as under : (SCC pp. 790-91, para 9)
       ‘9. The second relates to the difference between the nature        F
    of vertical reservation and horizontal reservation. Social
    reservations in favour of SCs, STs and OBCs under Article
    16(4) are “vertical reservations”. Special reservations in favour
    of physically handicapped, women, etc. under Articles 16(1)
    or 15(3) are “horizontal reservations”. Where a vertical
    reservation is made in favour of a Backward Class under Article       G
    16(4), the candidates belonging to such Backward Class, may
    compete for non-reserved posts and if they are appointed to
    the non-reserved posts on their own merit, their number will
    not be counted against the quota reserved for respective
    Backward Class. Therefore, if the number of SC candidates,
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1016     SUPREME COURT REPORTS                           [2022] 4 S.C.R.


 A        who by their own merit, get selected to open competition
          vacancies, equals or even exceeds the percentage of posts
          reserved for SC candidates, it cannot be said that the
          reservation quota for SCs has been filled. The entire reservation
          quota will be intact and available in addition to those selected
          under open competition category. (Vide Indra Sawhney v.
 B
          Union of India, 1992 Supp (3) SCC 217], R.K. Sabharwal v.
          State of Punjab [(1995) 2 SCC 745], Union of India v. Virpal
          Singh Chauhan [(1995) 6 SCC 684] and Ritesh R. Sah v. Y.L.
          Yamul [(1996) 3 SCC 253].) But the aforesaid principle
          applicable to vertical (social) reservations will not apply
 C        to horizontal (special) reservations. Where a special
          reservation for women is provided within the social reservation
          for Scheduled Castes, the proper procedure is first to fill up
          the quota for Scheduled Castes in order of merit and then find
          out the number of candidates among them who belong to the
          special reservation group of “Scheduled Caste women”. If the
 D
          number of women in such list is equal to or more than the
          number of special reservation quota, then there is no need
          for further selection towards the special reservation quota.
          Only if there is any shortfall, the requisite number of Scheduled
          Caste women shall have to be taken by deleting the
 E        corresponding number of candidates from the bottom of the
          list relating to Scheduled Castes. To this extent, horizontal
          (special) reservation differs from vertical (social)
          reservation. Thus women selected on merit within the vertical
          reservation quota will be counted against the horizontal
          reservation for women.’
 F
          15. In view of the above, it is evident that the judgment and
       order of the High Court is not in consonance with the law laid
       down by this Court in Rajesh Kumar Daria [(2007) 8 SCC 785].
       The judgment and order impugned herein is liable to be set aside
       and all the consequential orders become unenforceable and
 G
       inconsequential. Thus, the appeals succeed and are allowed. The
       judgment and order of the High Court dated 26-10-2005 passed
       in Mamta Bisht v. State [WPMB No. 780 of 2003, order dated
       26-10-2005 (Utt)] is hereby set aside. No costs.”
                                                    (emphasis in original)
 H
    BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                            1017
           CHOUDHARY & ORS. [M. R. SHAH, J.]

       8.4 In Ritesh R. Sah v. Y.L. Yamul, (1996) 3 SCC 253 after             A
noticing the Larger Bench decision of this Court in the case of Indra
Sawhney (supra) and R.K. Sabharwal (supra), it is observed in
paragraph 13 to 16 as under:
             “13. There cannot be any dispute with the proposition that
         if a candidate is entitled to be admitted on the basis of his own    B
         merit then such admission should not be counted against the
         quota reserved for Scheduled Caste or Scheduled Tribe or any
         other reserved category since that will be against the
         constitutional mandate enshrined in Article 16(4).
         14. In Indra Sawhney v. Union of India [1992 Supp (3) SCC            C
      217] commonly known as Mandal case, this Court held thus :
      (SCC p. 735, para 811)
             ‘811. In this connection it is well to remember that the
         reservations under Article 16(4) do not operate like a communal
                                                                              D
         reservation. It may well happen that some members belonging
         to, say, Scheduled Castes get selected in the open competition
         field on the basis of their own merit; they will not be counted
         against the quota reserved for Scheduled Castes; they will be
         treated as open competition candidates.’
                                                                              E
         15. In R.K. Sabharwal v. State of Punjab [(1995) 2 SCC 745]
      the Constitution Bench of this Court considered the question of
      appointment and promotion and roster points vis-à-vis reservation
      and held thus : (SCC p. 750, para 4)
             ‘4. When a percentage of reservation is fixed in respect of      F
         a particular cadre and the roster indicates the reserve points, it
         has to be taken that the posts shown at the reserve points are
         to be filled from amongst the members of reserved categories
         and the candidates belonging to the general category are not
         entitled to be considered for the reserved posts. On the other
                                                                              G
         hand the reserved category candidates can compete for the
         non-reserved 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.
         Article 16(4) of the Constitution of India permits the State
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1018     SUPREME COURT REPORTS                          [2022] 4 S.C.R.


 A        Government to make 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. It is, therefore,
          incumbent on the State Government to reach a conclusion that
          the Backward Class/Classes for which the reservation is made
 B
          is not adequately represented in the 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
 C        percentage of posts to be reserved for the said Backward Class
          then the percentage has to be followed strictly. The prescribed
          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. As mentioned
 D        above the roster point which is reserved for a Backward
          Class has to be filled by way of appointment/promotion of
          the member of the said class. No general category candidate
          can be appointed against a slot in the roster which is reserved
          for the Backward Class. The fact that considerable number
          of members of a Backward Class have been appointed/
 E        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. Despite any number of appointees/
 F
          promotees belonging to the Backward Classes against the
          general category posts the given percentage has to be provided
          in addition.’
          16. In Union of India v. Virpal Singh Chauhan [(1995) 6
 G     SCC 684] (SCC at p. 705) it has been held that while determining
       the number of posts reserved for Scheduled Castes and Scheduled
       Tribes, the candidates belonging to reserved category but
       selected/promoted on the rule of merit (and not by virtue of rule
       of reservation) shall not be counted as reserved category
       candidates.”
 H
     BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                            1019
            CHOUDHARY & ORS. [M. R. SHAH, J.]

        8.5 In a more recent decision this Court in the case of Saurav         A
Yadav Vs. State of U.P., (2021) 4 SCC 542 after referring to all the
earlier judgments on vertical reservation has observed and held that it is
well settled that candidates belonging to any of the vertical reservation
categories are entitled to be selected in “open or general” category and
it is also further observed that if such candidates belonging to reserved
                                                                               B
categories are entitled to be selected on the basis of their own merit,
their selection cannot be counted against the quota reserved for the
categories that they belong.
       8.6 Similar view has been expressed by this Court in another recent
decision of this Court in the case of Sadhana Singh Dangi Vs. Pinki            C
Asati, (2022) 1 SCALE 534. By the said decision, it is reiterated that
the reserved category candidates securing higher marks than the last of
the general category candidates are entitled to get seat/post in unreserved
categories. It is further observed and held that even while applying
horizontal reservation, merit must be given precedence and if the
candidates, who belong to SCs, STs and OBCs have secured higher                D
marks or are more meritorious, they must be considered against the
seats meant for unreserved candidates. It is further observed that the
candidates belonging to reserved categories can as well stake claim to
seats in unreserved categories if their merit and position in the merit list
entitles them to do so.                                                        E
       9. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, it is noted that the aforesaid
two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,
belonging to OBC category, were required to be adjusted against the
general category as admittedly they were more meritorious than the last        F
of the general category candidates appointed and that their appointments
could not have been considered against the seats meant for reserved
category. Consequently, after considering their appointments in the general
category, the seats meant for reserved category were required to be
filled in from and amongst the other remaining reserved category
                                                                               G
candidates on merit such as respondent No.1 herein. If such a procedure
would have been followed, the original applicant – respondent No.1 would
have got appointed on merit in the reserved category seats in the vacancy
caused due to the above procedure. Therefore, as such the High Court
has not committed any error in observing and holding that the aforesaid
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1020            SUPREME COURT REPORTS                           [2022] 4 S.C.R.


 A     two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar,
       will have to be adjusted against the general category candidates and
       accordingly respondent No.1 being a reserved category candidate and
       being at Sr. No.1 in the waiting list of reserved category was to be
       appointed.
 B            However, at the same time, it cannot be disputed that by reshuffling
       and on insertion of two OBC candidates into general category select list,
       two general category candidates already appointed shall have to be
       expelled and/or shall have to be removed, who are working since long
       and it may unsettle the entire selection process. Therefore, to strike a
 C     balance and to ensure that the two general category candidates, who
       are already appointed will not have to be removed and at the same time,
       respondent No.1 – original applicant being a reserved category candidate
       also gets accommodated, if he is so appointed, in exercise of the powers
       under Article 142 of the Constitution of India, we propose to pass an
       order that on reshuffling and on respondent No.1 – original applicant
 D     being appointed now against the reserved category seats and while the
       aforesaid two candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh
       Kumar, belonging to reserved category, to be treated in the general
       category seats, two candidates already appointed and belonging to general
       category shall not be removed. However, respondent No.1 shall get the
 E     seniority from the date the general category candidates were appointed,
       who were having lesser merit than the aforesaid two reserved category
       candidates, namely, Mr. Alok Kumar Yadav and Mr. Dinesh Kumar.
              10. Now, so far as the decision of this Court in the case of Ramesh
       Ram (supra) relied upon by learned counsel appearing on behalf of the
 F     BSNL is concerned, the aforesaid decision is not applicable to the facts
       of the case on hand. The said decision is distinguishable on facts. In the
       said case, this Court was considering Rule 16(2) of Civil Services
       Examination Rules relating to Civil Services Examination held by the
       Union Public Service Commission. Rule 16(2)of the Rules reads as
       under:-
 G
             “16(2) While making service allocation, the candidates belonging
             to the Scheduled Castes, the Scheduled Tribes or Other Backward
             Classes recommended against unreserved vacancies may be
             adjusted against reserved vacancies by the Government if by this
 H
    BHARAT SANCHAR NIGAM LIMITED & ANR. v. SANDEEP                          1021
           CHOUDHARY & ORS. [M. R. SHAH, J.]

      process they get a service of higher choice in the order of their     A
      preference.”
       The said case was a case of Civil Services, where the selected
candidates were having different preferences and in a given case, it
may happen that the general category candidates, who are less meritorious
and the reserved category candidates having more marks than the general     B
category candidates and consequently they are to be adjusted against
the reserved category and they can possibly secure posts in a service of
a higher preference. Therefore, option was given to such candidates
belonging to reserved category to consider their candidature against the
reserved category only despite having higher merit than General Category    C
Candidates. However, in the present case, there is no question of any
such preference. On interpretation of Rule 16(2) in paragraph 42, it was
observed and held as under:-
      “42. Therefore, we are of the firm opinion that MRC candidates
      who avail the benefit of Rule 16(2) and are eventually adjusted in    D
      the reserved category should be counted as part of the reserved
      pool for the purpose of computing the aggregate reservation quotas.
      The seats vacated by MRC candidates in the general pool will
      therefore be offered to general category candidates. This is the
      only viable solution since allotting these general category seats
      (vacated by MRC candidates) to relatively lower-ranked reserved       E
      category candidates would result in aggregate reservations
      exceeding 50% of the total number of available seats. Hence, we
      see no hurdle to the migration of MRC candidates to the reserved
      category.”
       We fail to appreciate how the said decision is applicable to facts   F
of the case on hand and/or of any assistance to the BSNL faced with
the decisions of this Court in the case of Indra Sawhney (supra) and
other decisions referred to hereinabove.
       11. In view of the above and for the reasons stated above, the
                                                                            G
present appeal fails and the same deserves to be dismissed and is
accordingly dismissed. The High Court has rightly observed and held
that two reserved category candidates, namely, Mr. Alok Kumar Yadav
and Mr. Dinesh Kumar having more marks than the general category
candidates appointed, were entitled to the appointment in the general
category and the seats reserved for OBC category were required to be        H
1022              SUPREME COURT REPORTS                        [2022] 4 S.C.R.


 A     filled in from and amongst the remaining candidates belonging to the
       OBC category. Consequently, respondent No.1 – original applicant was
       entitled to the appointment on such post. However, at the same time in
       exercise of the powers under Article 142 of the Constitution of India, it
       is observed and directed that on reshuffling, the two candidates belonging
       to general category shall not be removed from service as they are working
 B
       since long. However, at the same time, the respondent No.1 shall be
       entitled to the seniority from the date, the general category candidates
       having lesser marks than the aforesaid two reserved category candidates
       were appointed.

 C            With this, the present appeal stands dismissed. However, in the
       facts and circumstances, there shall be no order as to costs.
              12. Before parting, we would like to deeply appreciate the services
       rendered by Dr. Rajeev Dhavan, learned Senior Advocate and Shri
       Gaurav Agrawal, learned Advocate, who have assisted the Court as
 D     Amicus Curiae and we are thankful to both of them for their valuable
       assistance.


       Bibhuti Bhushan Bose                                       Appeal dismissed.
       (Assisted by : Preetam Bharti, LCRA)

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