Supreme Court of India
JITENDER KUMAR SINGH & ANR.versusSTATE OF U.P. & ORS.
- Citation
- 2010 INSC 24
- Decided
- 8 January 2010
- Disposal
- Disposed off
- Bench
- TARUN CHATTERJEE
Holding
Concessions such as fee waiver and age relaxation are eligibility aids, not reservations, and do not preclude a reserved‑category candidate from being selected against an unreserved seat if he/she secures higher merit, while vacancies for women and sportspersons must be filled by horizontal reservation without carry‑forward.
Summary
The case concerned the direct recruitment of Sub Inspectors and Platoon Commanders in Uttar Pradesh, where a certain percentage of posts were reserved for women, outstanding sportspersons, and backward classes with accompanying fee and age relaxations. Unsuccessful candidates challenged the selection, arguing that age and fee concessions for reserved categories amounted to a reservation that allowed them to be considered for unreserved seats, thereby violating Article 16(1). The Supreme Court held that such concessions merely enable reserved‑category candidates to enter the pool of competition and do not constitute a reservation that tilts the merit balance; therefore, a candidate who secures more marks than the last general‑category candidate may be selected against an unreserved seat. The Court also clarified that vacancies reserved for women and sportspersons must be filled by applying horizontal reservation and cannot be carried forward, and that the State had already complied with this requirement. Consequently, the directions of the Division Bench and the Single Judge to recalculate vacancies and to fill unfilled women’s seats from male candidates were set aside. The appeals filed by the State and the Director General of Police were allowed, restoring the original selection list.
Issues considered
- The extent to which a reserved‑category candidate who avails fee and age relaxations can be considered for an unreserved seat under Article 16(1) and 16(4).
- Whether Section 3(6) of the Uttar Pradesh Reservation Act, 1994 precludes adjustment of such candidates against general‑category vacancies.
- The legality of treating fee and age concessions as part of the reservation scheme.
- The applicability of horizontal reservation to posts reserved for women and outstanding sportspersons and whether such vacancies can be carried forward.
- The correct method of calculating the number of general‑category vacancies after accounting for the 2% sports quota.
- The compatibility of the State's instructions dated 25.03.1994 and 26.02.1999 with the statutory provisions.
- The broader question of balancing individual equality of opportunity under Article 16(1) with group rights under Article 16(4).
Legislation cited
- U.P. Public Services (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1994s. 3(6), s. 8
- U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994s. 3(1), s. 3(2), s. 3(4), s. 3(6), s. 8
Subjects
ReservationArticle 16(1)Article 16(4)Age relaxationFee concessionHorizontal reservationWomen reservationSports quotaOpen competitionU.P. Public Services Act
Judgment
[2010] 1 S.C.R. 325
JITENDER KUMAR SINGH & ANR. A
v.
STATE OF U.P. & ORS.
(Civil Appeal No. 74 of 2010)
JANUARY 08, 2010
B
[TARUN CHAITERJEE AND SURINDER SINGH
NIJJAR, JJ.]
Constitution of India, 1950 - Articles 14, 16(1) and (4):
c
Direct recruitment on the post of Sub Inspectors and
Platoon Commanders - Reservation for Backward Classes,
Scheduled Castes, Scheduled Tribes - Relaxation of fee and
age - Selection of a reserve category candidate against
unreserved seats - Selection process, challenged by general 0
category candidate - Held: Concession in fee and age
relaxation would not fall within the definition of 'reservation' -
Such relaxation only enables candidates belonging to
reserved category to fall within the zone of consideration, so
that they can participate in open competition on merit - It does E
not tilt the balance in favour of reserved category candidates,
in the preparation of final select list - It is only, thereafter, merit
of candidates is determined without any further concessions
in his favour- There is no infringement of Article 16(1)- UP.
Public Services (Reservation for Scheduled Casts and F
Scheduled Tribes) Act, 1994 - ss. 3(6) and 8 - Government
instructions dated 25.03.1994.
Direct recruitment on the post of Sub Inspectors and
Platoon Commanders - Reservation for outstanding
Sportspersons and women - Legality of - Carry forward of
posts - Permissibility of - Held: Vacancies reserved for G
women and outstanding sportsperson is to be filled by
applying 'horizontal reservation' - Any posts reserved for
women which remain unfilled have to be filled up from
325
H
326 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A amongst suitable male candidates with a specific prohibition
that posts shall not be carried forward for future - On facts,
State did not carry forward any of general category posts
reserved for women and outstanding sportspersons - Alf posts
remaining unfilled, in category reserved for women were filled
B up by suitable male candidates - Thus, Division Bench erred
in directing the State to fill in unfilled vacancies reserved for
women from suitable male candidates - Single Judge erred
in directing the State to recalculate vacancies reserved for
sportspersons - Conclusions with regard to 34 posts reserved
c for sportsmen category set aside - Government instructions
dated 26.02.1999 - Paragraph 2, 4.
Reservation under Article 16(1) and (4) - Benefit of -
Explained.
D Precedent: Mere quoting of isolated observations in a
judgment - Held: Cannot be treated as a precedent de hors
the facts and circumstances in which the observation was
made.
E An advertisement was issued for direct recruitment
on the post of Sub Inspectors and Platoon Commanders.
2% posts were reserved for outstanding Sportspersons
and the recruitments to these posts were to be made by
a separate advertisement. 10% of the posts were
F reserved for women. The procedure for selection was
carried out. The select list was prepared and the selected
candidates were sent for training. Appellants-
unsuccessful candidates challenged the selection. Single
Judge of High Court dismissed the writ petitions seeking
quashing of the entire select list; and direction to the
G respondents to send them for training to the post of Sub
Inspectors. It directed the respondents to recalculate the
number of posts of general category candidates by
applying 2% reservation for sports men horizontally and
adding 2% posts of sports men also while calculating the
H total number of vacancies of general category candidates
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 327
& ORS.
and if any post in general category candidates quota A
remains vacant the same shall be filled up by the general
category candidates next in merit. The Division Bench of
High Court held that if a reserved category candidate
secured marks more than last General Category
candidate, he is entitled to be selected against unreserved B
seat without being adjusted against reserved seat; that
52 vacancies of general category kept reserved for
women candidates remained vacant, the same had to be
filled from the general category male candidates and
could not be carried forward; and that the reservation in C
favour of sportspersons quota has to operate
horizontally, therefore, 29 vacancies which remained
unfilled could not have been carried forward. Hence the
_present appeals by the unsuccessful candidates as well
as State of U.P.
D
Allowing the appeals filed by the State and the
Director General of Police and dismissing that of the
General ' Category Candidates, the Court
HELD: 1. Reservation under Article 16(4) of the E
Constitution of India aims at group backwardness. It
provides for group right. Article 16 (1) guarantees equality
6f opportunity to all citizens in matters relating to
~~mployment. However, in implementing the reservation
policy, the State has to strike a balance between the F
competing claims of the individual under Article 16(1) and
the reserved categories falling within Article 16(4).
Reservations should not be so excessive as to render the
Fundamental Right under Article 16(1) of the Constitution
meaningless. Therefore, utmost care has to be taken that G
the 50% maximum limit placed on reservation in any
particular year must be maintained. It must further be
ensured that in making reservations for the members of
the Scheduled Castes and Scheduled Tribes, the
maintenance of the efficiency of administration is not
H
328 SUPREME COURT REPORTS [2010] 1 S.C.R.
A impaired. [Paras 33, 35 and 36) [354-D-E; 356-D-F-G]
Indra Sawhney and Ors. vs. Union of India and Ors. 1992
Supp (3) SCC 217, followed.
Post Graduate Institute of Medical Education &
B Research, Chandigarh vs. Faculty Association & Ors. 1998
(4) sec 1, relied on.
2.1. A perusal of section 3(1) of the U.P. Public
Services (Reservation for Scheduled Casts and
c Scheduled Tribes) Act, 1994 would show that it provides
for reservation in favour of the categories mentioned
therein at the stage of direct recruitment. The
concessions falling within s. 8 of the Act of 1994 cannot
be said to be relaxations in the standard prescribed for
qualifying in the written examination. Section 8 clearly
0
provides that the State Government may provide for
concessions in respect of fees in the competitive
examination or interview and relaxation in upper age limit.
[Para 51) [369-A-B, E]
E 2.2. The Government issued instructions dated
25.03.1994 on the subject of reservation for Scheduled
Caste, Scheduled Tribe and other backward groups in
the Uttar Pradesh Public Services. It provided that, if any
person belonging to reserved categories is selected on
F the basis of merits in open competition along with
general candidates, then he will not be adjusted towards
reserved category, that is, he shall be deemed to have
been adjusted against the unreserved vacancies. It shall
be immaterial that he has availed any facility or relaxation
G (like relaxation in age limit) available to reserved
category." It is apparent that the relaxation in age limit is
merely to enable the reserved category candidate to
compete with the general category candidate, all other
things being equal. The State has not treated the
H relaxation in age and fee as relaxation in the standard for
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 329
& ORS.
selection; based on the merit of the candidate in the A
selection test i.e. Main Written Test followed by Interview.
Therefore, such relaxations cannot deprive a reserved
category candidate of the right to be considered as a
general category candidate on the basis of merit in the
competitive examination. Sub-section (2) of Section 8 B
further provides that Government Orders in force on the
commencement of the Act in respect of the concessions
and relaxations including relaxation in upper age limit
which are not inconsistent with the Act continue to be
applicable till they are modified or revoked. (Paras 51 and . C
52] [369-F-G; 370-B-D]
2.3. Relaxation in age is not only given to members
of the Scheduled Castes, Scheduled Tribes and OBCs,
but also the dependents of Freedom Fighters. Such age
0
relaxation is also given to Ex-servicemen to the extent of
service rendered in the Army, plus three years. In fact, the
educational qualifications in the case of Ex-servicemen
is only intermediate or equivalent whereas for the
General category candidates it is graduation. Ex-
servicemen compete not only in their own category, but E
also with the General category candidates. No grievance
has been made by any of the appellants/petitioners with
regard to the age relaxation granted to the Ex-servicemen.
Similarly, the dependents of Freedom Fighters are also
free to compete in the General category if they secure F
more marks than the last candidate in the General
category. Therefore, there is no substance in the
submission that relaxation in age "queers the pitch" in
favour of the reserved category at the expense of the
General category. The relaxation in age does not in any G
manner upset the "level playing field". It is not possible
to accept that relaxation in age or the concession in fee
would in any manner be infringement of Article 16(1).
These concessions are provisions pertaining to the
eligibility of a candidate to appear in the competitive H
330 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A examination. At the time when the concessions are
availed, the open competition has not commenced. It
commences when all the candidates who fulfill the
eligibility conditions, namely, qualifications, age,
preliminary written test and physical test are permitted to
B sit in the main written examination. With age relaxation
and the fee concession, the reserved candidates are
merely brought within the zone of consideration, so that
they can participate in the open competition on merit.
Once the candidate participates in the written
c examination, it is immaterial as to which category, the
candidate belongs. All the candidates to be declared
eligible had participated in the Preliminary Test as also
in the Physical Test. It is only thereafter that successful
candidates have been permitted to participate in the open
competition. [Para 52) [370-F-H; 371-A-F]
0
2.4. The reserved category candidates have not been
given any advantage in the selection process. All the
candidates had to appear in the same written test and
face the same interview. It is therefore quite apparent that
E the concession in fee and age relaxation only enabled
certain candidates belonging to the reserved category to
fall within the zone of consideration. The concession in
age did not in any manner tilt the balance in favour of the
reserved category candidates, in the preparation of final
F merit/select list. It is permissible for the State in view of
Articles 14, 15, 16 and 38 to make suitable provisions in
law to eradicate the disadvantages of candidates
belonging to socially and educationally backward
classes. Reservations are a mode to achieve the equality
G of opportunity guaranteed under Article 16 (1).
Concessions and relaxations in fee or age provided to
the reserved category candidates to enable them to
compete and seek benefit of reservation, is merely an aid
to reservation. The concessions and relaxations place
H the candidates at par with General Category candidates.
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 331
& ORS.
It is only thereafter the merit of the candidates is to be A
determined without any further concessions in favour of
the reserved category candidates. [Para 39) [358-G-H;
359-A-D]
Indra Sawhney and Ors. vs. Union of India and Ors. 1992
B
Supp (3) SCC 217, followed.
2.5. The submission that section 3 (6) ensures that
there is a level playing field in open competition, however,
s. 8 lowers the level _playing field, by providing
concessions in respect of fees for any competitive c
examination or interview and relaxation in upper age limit,
cannot be accepted. Section 3 (6) is clear and
unambiguous. It clearly provides that a reserved category
candidate who gets selected on the basis of merit in open
competition with general category candidates shall not D
be adjusted against the reserved vacancies. Section 3(1),
3(6) and s. 8 are inter-connected. Expression "open
competition" in s. 3 (6) clearly provides that all eligible
candidates have to be assessed on the same criteria. All
the candidates irrespective of the category they belong E
to have been subjected to the uniform selection criteria.
All of them have participated in the Preliminary Written
Test and the Physical Test followed by the Main Written
Test and the Interview. Such being the position, it cannot
be said that the reserved category candidates having F
availed relaxation of age are disqualified to be adjusted
against the Open Category seats. It was perhaps to avoid
any further confusion that the State of UP issued
directions on 25.3.1994 to ensure compliance of the
various provisions of the Act. Non-compliance by any G
Officer was in fact made punishable with imprisonment
which may extend to period of three months. Thus, the
appeals filed by the General Category candidates are
without any substance. [Paras 53 and 54] [371-G-H; 372-
A-E]
H
332 SUPREME COURT REPORTS [2010] 1 S.C.R.
A 2.6. The conclusion reached by the Division Bench
on the issue of concessions and relaxations cannot be
said to be erroneous. The Division Bench concluded that
concession in respect of age, fee etc. are provisions
pertaining to eligibility of a candidate to find out as to
B whether he can appear in the competitive test or not and
by itself do not provide any indicia of open competition.
The competition would start only at the stage when all the
persons who fulfill the requisite eligibility conditions,
namely, qualification, age etc. are short-listed. [Para 37)
C [357-A-C]
2.7. The observations in K.L. Narsimhan case make it
clear that if a reserved category candidate gets selected
on the basis of merit, he cannot be treated as a reserved
candidate. In the instant case, the concessions availed
D of by the reserved category candidates in age relaxation
and fee concession had no relevance to the
determination of the inter se merit on the basis of the final
wri.tten test and interview. The ratio of K.L. Narsimhan
case in fact permits reserved category candidates to be
E included in the General Category Candidates on the basis
of merit. Even otherwise, merely quoting the isolated
observations in a judgment cannot be treated as a
precedent de hors the facts and circumstances in which
the observation was made. The judgment in K.L.
F Narsimhan case having been set aside, it cannot be
accepted that the reasoning would still be binding as
precedent. Reliance placed upon the observation in K.L
Narsimhan case is wholly misplaced. [Paras 42, 43, 47
and 48) [361-C-E; 365-F-G; 366-A]
G
Post Graduate Institute of Medical Education & Research,
Chandigarh and Ors. vs. K.L.Narsimhan and Ors. 1997 (6)
sec 283, held inapplicable.
Union of India & Ors. vs. Dhanwanti Devi and Ors.
H 1996(6) SCC 44; State of Orissa and Ors. vs. Md.11/iyas
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 333
& ORS.
2006(1) SCC 275; Chakradhar Paswan (Dr.) vs. State of A
Bihar (1998) 2 SCC 214; Union of India vs. Madhav (1997)
2 SCC 332; Arati Ray Chaudhary vs. Union of India 1974 (1)
SCC 87; Dr.Preeti Srivastava and Anr.v. State of M.P. and
Ors. 1999 (7) SCC 120; Bharati Vidyapeeth and Ors v. State
of Maharashtra and Anr. 2004 (11) SCC 755; State of Madhya B
Pradesh and Ors. v. Gopal 0. Tripathi and Ors. 2003 (7) SCC
83, referred to.
3.1. The vacancies reserved for women and for the
outstanding sportsperson had to be filled by applying
'horizontal reservation'. Para 2 and 4 of the instructions C
dated 26.02.1999 state that the reservation will be
horizontal in nature i.e. to say that category for which a
women has been selected under the aforesaid reservation
policy for posts for women in Public Services and on the
posts meant for direct recruitment under State D
Government, shall be adjusted in the same category
only; that if a suitable women candidate is not available
for the post reserved for women in Public Services and
on the posts meant for direct recruitment under State
Government, then such a post shall be filled up from E
amongst a suitable male candidate and such a post shall
not be carried forward for future." The Single Judge
whilst interpreting the same observed that it does not
specifically provide for posts which are not filled up by
women candidates to be filled up from the male F
candidates. This view is contrary to the specific provision
contained in Paragraph 4. The said provision leaves no
matter of doubt that any posts reserved for women which
remain unfilled have to be filled up from amongst suitable
male candidates. There is a specific prohibition that posts G
shall not be carried forward for future. Therefore, the view
expressed by Single Judge cannot be sustained. [Paras
59, 60 and 61] [377-C-H; 378-A-B]
3:2. In view of the Para 2 and 4 of the instructions
dated 26.02.1999, the State has not carried forward any H
334 SUPREME COURT REPORTS [201 OJ 1 S.C.R.
A of the general category posts reserved for women and
outstanding sportspersons. All the posts remaining
unfilled, in the category reserved for women have been
filled up by suitable male candidates, therefore, clearly no
post has been carried forward. Therefore, the mandate in
B Indra Sawhney and the G.O. dated 26.2.1999, have been
fully coupled with. The conclusion recorded by the
Division Bench is without any factual basis. The factual
position was brought to the notice of Division Bench in
the recall/modification application. However, the recall/
c modification application was rejected. The Division Bench
erred in issuing the directions to the appellants to fill in
the unfilled vacancies reserved for women candidates
from suitable male candidates. This exercise had already
been completed by the appellant-State. [Para 62] (378-C-
D E]
3.3. The Single Judge despite taking note of the
averments made in the supplementary counter affidavit
by the State, erroneously issued directions to recalculate
the vacancies reserved for outstanding sportspersons. It
E was specifically pointed out that a separate advertisement
had been published for recruitment on the post reserved
for outstanding sportsperson; and pointed out that all the
posts available in the category of sportsmen were filled
up in the subsequent selection. No post remained
F unfilled. Therefore, the conclusion of the Single Judge
that 34 posts-29 SICP+5 PC ought not to have been
deducted from the available 1478 posts for the purposes
of calculating the number of vacancies available to the
general category, was factually erroneous. The principle
G of horizontal reservation would also apply for filling up
the post reserved for outstanding sportsperson. There
could have been no carry forward of any of the post
remaining unfilled in the category of outstanding
sportsperson. As a matter of fact, there was no carry
H forward of the vacancies. They were filled in accordance
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 335
& ORS.
with the various instructions issued by the Government A
from time to time. Division Bench erred in law in
concluding that since the advertisement did not mention
that a separate selection will be held, for the post reserved
for sportsmen, the same would not be permissible in law.
The deduction of 34 posts for separate selection would B
not in any manner affect the overall ratio of reservation
as provided by law. The separate selection is clearly part
and parcel of the main selection. Thus, the conclusions
recorded by the Single Judge and the Division Bench
with regard to the 34 posts reserved for the outstanding c
sportsmen category-29 SICP+5 PC also cannot be
sustained. The direction issued by the Single Judge in the
final paragraph as well as the directions issued by the
Division Bench in modification of the order of Single
Judge are set aside. [Paras 63 and 64] [378-E-H; 379-A-
0
E-F]
Indra Sawhney and Ors. vs. Union of India and Ors. 1992
Supp (3) SCC 217, Followed.
Union of India and Anr. v. Satya Prakash and Ors. JT E
2006 (4) SC 524, referred to.
Case Law Reference :
JT 2006 (4) SC 524 Referred to. Para 27
F
1992 Supp (3) sec 211 Followed. Para 33,
35,36, 39,59,62
(1998) 4 sec 1 Relied on. Para 34
1997 (6) sec 283 Held inapplicable. Para 41,
G
42
1996(6) sec 44 Referred to. Para 43
2006(1) sec 21s Referred to. Para 44
(1998) 2 sec 214 Referred to. Para 45 H
:336 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A (1997) 2 sec 332 Referred to. Para 45
1974 (1) sec 87 Referred to. Para 45
1999(7) sec 120 Referred to. Para 48
2004 (11) sec 755 Referred to. Para 48
B
2003 (7) sec 83 Referred to. Para 48
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 74
of 2010.
c From the Judgment & Order dated 22.12.2006 of the High
Court of Judicature at Allahabad in Special Appeal No. 862 of
2002.
WITH
D
C.A. Nos. 75, 79, 80, 76-78 and 81 of 2010.
L.N. Rao, Dinesh Dwivedi, Dr. Rajeev Dhawan, S.R.
Singh, Shail Kr. Dwivedi, AAG, Sanjeev Kr. Singh, Siddhartha
Chowdhury, Manoj Kr. Dwivedi, Vandana Mishra, Abhishek Kr.
E Singh, Ashutosh Kr. Sharma, Manish Srivastava, Gunnam
Venkateswara Rao, Jatendra Singh, Pallavi Mohan, Priyanka
Singh, S.K. Sabharwal, Jetendra Singh, Sunita Pandit, K.L.
Janjani, Amit Anand Tiwari, the appearing parties.
The Judgment of the Court was delivered by
•
F
SURINDER SINGH NIJJAR, J.
Civil Appeal Nos. 74, 79, 75, 80 of 2010
(arising out of SLP (C)Nos.1952, 1959, 1967 & 7739 of
G 2008
1. Leave granted.
2. These Appeals are directed against the common
Division Bench judgment of the High Court of Judicature at
H Allahabad dated 22.12.2006. By the aforesaid judgment, the
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 337
& ORS. [SURINDER SINGH NIJJAR, J.]
High Court decided number of Appeals directed against the A
common judgment of the learned Single Judge in Writ Petition
No.25328 of 2001 and a number of other connected writ
petitions.
3. The appellants had assailed the judgment dated
B
22.5.2002 of the learned Single Judge to the extent that the Writ
Petition Nos.25328, 26847, 36411, 28836, 26177, 34039,
4630, 32763, 27849, 27060, 29069 of 2001 and 47528 of
2002 had been dismissed whereby the petitioners-appellants
were seeking a writ in the nature of mandamus directing the C
respondents to send them for training to the post of Sub
Inspectors. In some of the writ petitions, a prayer had also been
made for quashing the entire select list which was also declined
by the learned Single Judge. In Special Appeal No.592 of 2006,
the appellant who was respondent had assailed the aforesaid
judgment of the learned Single Judge only to the extent the D
Single Judge had issued a writ in the nature of mandamus to
the respondent-appellants to fill up vacancies against 2% Sports
Quota from the aforesaid selection itself. In Special Appeal
No.1285 of 2002, the original petitioner had challenged the
judgment dated 01.10.2002 passed by the learned Single E
Judge (R.K.Agarwal, J.) dismissing the writ petition no.47528
of 2002 following the judgment dated 22.5.2002 of Ashok
Bhusan, J. in writ petition no.25328 of 2001 and other
connected matters (supra). In Special Appeal No.910 of 2005,
the original petitioner had assailed the judgment dated F
19.7.2005 of Sunil Ambwani, J. dismissing writ petition
no.29383 of 2001 again following the judgment dated
22.5.2002 of Ashok Bhusan,J. (supra).
4. The dispute between the petitioners and the G
respondents revolves around the issue of reservation of posts
for Backward Classes, Scheduled Castes, Scheduled Tribes,
Women Candidates and Sportspersons.
5. We may notice here the relevant facts before we advert
to controversy in detail. H
338 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A 6. An advertisement was issued on 4.5.1999 for direct
recruitment on the post of Sub Inspectors in Civil Police
(hereinafter referred to as "SICP") and Platoon Commanders
in PAC (hereinafter referred to as "PC"). According to the
respondents, the break down of the posts was 1379 Posts for
B SICP and 255 posts for PC. Out of these posts, 2% posts were
reserved for outstanding Sportspersons. The recruitments to
these posts were to be made by a separate advertisement.
Apart from above, 10% of the posts were reserved for women.
7. The procedure for selection included a Preliminary
C Written Test consisting of 300 marks. Candidates were required
to secure at least 50% marks for being declared successful and
entitled to participate in further test. This was followed by a
Physical Test consisting of 100 marks. Again the candidate had
to secure at least 50% or more marks. The marks obtained in
D the Preliminary Written Test and the Physical Test were,
however, not to be included for determination of final merit.
Candidates who qualified in the Preliminary Written Test and
the Physical Test were required to appear in the Main Written
Test consisting of 600 marks, having two papers i.e. General
E Hindi, General Knowledge and Mental Aptitude Test. Here
again a candidate who secured 40% or more marks could only
be declared successful. The written test consisted of two
papers- (i) Hindi language and Essay consisting of 200 marks
and (ii) General Knowledge and Mental Aptitude Test consisting
F of 400 marks. Thereafter, the candidate was to appear for
interview which consisted of 75 marks. There were, however,
no qualifying marks for the interview.
8. It is common ground that in response to the
G advertisement, more than 50,000 candidates applied for the
posts. The result for the Preliminary Written Test which was held
on 6.2.2000, was declared on 22.9.2000. 7325 candidates
were found successful. Physical Test was held from 29.10.2000
to 6.11.2000 and 1454 candidates were found successful. The
Main Written Test was held on 29.4.2001 wherein 1178
H
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 339
& ORS. [SURINDER SINGH NIJJAR, J.]
candidates were declared successful. The final result of the A
interview was declared on 6.7.2001, wherein 1006 candidates
were declared successful. The number of persons who were
selected in different categories finally and have been sent for
Training is as under:-
B
1. General (Male) for the post of Sub Inspectors 608
2. General (Female) for the post of Sub
Inspectors (This included one dependent of
freedom fighter)
Note: 163 OBC, 19 Scheduled Castes and 1
c
Scheduled Tribes candidates having secured
more than the last general candidate, were
selected against general vacancies. 15
3. OBC (male) for the post of Sub Inspectors 168 D
4. OBC (female) for the post of Sub Inspectors 9
5. SC (male) for the post of Sub Inspectors 25
6. SC (female) for the post of Sub Inspectors 1
7. ST (male) for the post of Sub Inspectors 3 E
8. General (male) Platoon Commander in PAC 125
9. All the petitioners-appellants who applied pursuant to
the aforesaid advertisement had participated in the entire
selection process. However, the names did not figure in the F
merit list of the selected candidates.
10. The selection was challenged in a number of writ
petitions by candidates who were not included in the select list.
According to the High Court, the selection was challenged on G
the following grounds:-
1. The selection has been made by adopting pick and
choose method.
H
340 SUPREME COURT REPORTS [2010] 1 S.C.R.
A 2. More than 600 posts are still vacant yet the petitioners
have not been declared successful.
3. There was no guideline or criteria for interview.
4. The number of candidates appeared for main
8 examination and interview being less than the total number
of vacancies, therefore, the petitioner-appellants could not
have been unsuccessful.
5. Several candidates having inferior educational record
c have been declared successful.
6. Certain persons having Roll Nos.0492198, 520570,
0492263, 760146, 480612, 492353, 7706166, 790658;
790519 and 790035 did not find place in the result after
main examination yet have been shown as selected finally
D in the final merit list which shows serious irregularities and
bungling in the selection.
7. Keeping large number of vacancies unfilled although
successful candidates are available is a motive for
E extracting illegal demand.
11. The writ petitions were opposed by the State
Government by filing a detailed counter-affidavit in Writ Petition
No.26177 of 2001. The aforesaid counter-affidavit was said to
F have been read on behalf of the State in all the cases. It was
explained by the State Government that in response to the
advertisement, total 53780 application forms were received. It
was further explained that 1178 candidates had qualified in the
main written test who appeared in the interview which was held
between 18.6.2001 to 1.7.2001. It was further explained that
G vide Government order dated 3.2.1999, 2956 posts of SICP
were sanctioned, out of which 50% posts were to be filled by
direct recruit and 50% posts by promotion. Therefore, 1478
posts came to be filled in by direct recruit. Since 99 posts were
filled under the Category of "Dying in Harness" Rules, only 1379
H posts remained to be filled. Separate selection was to be held
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 341
& ORS. [SURINDER SINGH NIJJAR, J.]
on the 2% vacancies reserved for Sportspersons through a A
separate advertisement. Therefore, as a matter of fact, actual
recruitment was made i.e. only for 1350 posts of SICP and 255
posts of PC. The break-up of the posts was as indicated above.
12. Upon consideration of the entire matter, Ashok Bhusan, B
J. delivered common judgment dated 22.5.2002 in CMWP
No.25328 of 2001 (Narendra Partap Singh vs. Director General
of Police, UP and others). All the writ petitions were disposed
of with the following observations:-
" In view of the foregoing discussions none of the C
contentions of the petitioner can be accepted except the
contention regarding 2% reservation for sports men. Relief
claimed by the petitioner cannot be granted except the
direction to the respondents to recalculate the number of
posts of general category candidates by applying 2% D
reservation for sports men horizontally and adding 2%
posts of sports men also while calculating the total number
of vacancies of general category candidates. If after
applying 2% reservation horizontally any post in general
category candidates quota remains vacant the same shall E
be filled up by the general category candidates next in
merit. It is, however, made clear that by the said exercise
the selection already made will not be affected in any
manner.
All the writ petitions are disposed of with the aforesaid F
directions"
13. This judgment was subsequently followed in the
separate judgments delivered by R.K.Agarwal, J. and Sunil
Ambwani, J. All the three judgments were challenged in appeals G
before the Division Bench, which have been decided by the
common judgment dated 22.12.2006.
14. The Division Bench noticed the submissions made by
the learned counsel for the parties in detail and formulated H
342 SUPREME COURT REPORTS [2010] 1 S.C.R.
A seven issues which arose in the appeals. The issues were as
under:-
"1. What is the extent of selection of a reserve category
candidate against unreserved seats and in what
circumstances he can be considered against unreserved
8
vacancies besides reserve seats. The relevant factors,
shades and nuisances for such adjustment also need to
be identified, if any.
2. Whether Section 3 (6) of Act of 1994 would apply where
c a candidate of reserve category though has availed
relaxation meant for reserve category candidates namely
fee and age but in all other respect, in the selection test,
has competed with general category candidates and has
secured more marks than the last selected general
D category candidate. In other words whether relaxation in
age and fee would deprive and outsource him from
competing against an unreserved seat in an open
competition with general candidates.
3. Whether selection of reserve category candidates
E against reserved and unreserved constituting more than
50% is unconstitutional or otherwise contrary to law.
4. Whether reservation of seats for women is violative of
Article 16(2) of the Constitution of India.
F
5. Whether seats reserved for women can be carried
forward in case suitable candidates are not available or
the reservation being horizontal and applicable to all
categories, the unfilled vacancies are to be filled by
suitable male candidates.
G
6. Whether keeping 2% sports quota separate from the
selection in question is illegal.
7. Whether selection in question is otherwise vitiated on
H account of any alleged irregularity or bungling.
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 343
& ORS. [SURINDER SINGH NIJJAR, J.]
15. The Division Bench noticed the historical background A
in which the provisions with regard to reservation came to be
incorporated in the Constitution of India. The Division Bench
also noticed the entire history with regard to the various
government orders making reservation for different categories.
The Division Bench notices that the matter of reservation has B
been dealt in detail by this Court in numerous cases. Therefore,
the Division Bench has confined itself to the problem as, faced
and countered, in the State of U.P; particularly with reference
to the category of the candidates belonging to 'O.B.Cs.' The
Division Bench also noticed the statutory provisions contained c
in the U.P. Public Services (Reservation for Scheduled Castes
and Scheduled Tribes) Act, 1994 (hereinafter referred to as "the
Act of 1994"). The High Court considered issues no.1, 2 and
3 together.
16. The Division Bench has concluded that the various D
Government orders and the Act of 1994 provide reservation in
State services with the intent to achieve the goal of adequate
representation of Backward Classes of Citizens in service. It
notices that reservation under Article 16(4) has to be made
keeping in view the provisions contained in Article 14, 16(1) E
and 335 of the Constitution of India. It is also held that there
are various modes and methods of providing reservation. The
extent and nature of reservation is a matter for the State to
decide considering the facts and requirements of each case.
In this case the Legislature has empowered the State to extend F
concessions limited to fee and age to OBCs, besides keeping
reservation of seats to the extent of 27%. The prime objective,
obviously, is to provide adequate representation to these
classes, which in the opinion of the Legislature are not
adequately represented in the services under the State. The G
Division Bench also concluded that the State Government has
not conducted any indepth study to find out as to whether
adequate representation has been given to any particular
Backward Classes as a result of successive provisions for
reservation. Therefore, a direction has been given to the State H
344 SUPREME COURT REPORTS (201 O] 1 S.C.R.
A Government of U.P. to undertake an indepth study to find out
the representation of various Backward Citizens in Public
service and to find out whether any Backward Class citizens
have achieved the constitutional goal of adequate
representation in service or not. Thereafter, the Government is
B to review the policy in the light of facts, figures and information
received pursuant to such study. The exercise is to be
undertaken by the State Government within six months and a
compliance report is to be submitted to the Court.
17. With regard to the manner, mechanism and inter-
C relationship of various concessions and reservations, the
Division Bench observed that it is permissible for the State to
provide concessions to achieve the goal under Article 16(4)
without keeping the seats reserved for any backward class of
citizens. When certain seats are reserved, it would not result
D in making unreserved seats compartmentalized for General
Category candidates i.e. unreserved candidates. There is no
reservation for General Category Candidates. It is also held that
a reserved category candidate, in addition to the reserved
seats, can always compete for unreserved seat. The Division
E Bench has further held that the reserved category candidate
can also compete against the unreserved seats under a criteria
which is uniformly applicable to all the candidates. In case the
selection criteria is lowered for the reserved category
candidate, then such difference in standard or criteria would
F disentitle the reserved category candidate to compete in the
general category. After analyzing the law laid down by this Court
in numerous judgments, the Division Bench has concluded that
the conflicting claims of individuals under Article 16(1) and the
preferential treatment given to a backward class under Article
G 16(4) of the Constitution has to be balanced, objectively. The
Division Bench then considered as to whether the concession
or relaxation in the matter of fee and age would deprive a
reserved candidate of his right to be considered against an
unreserved seat. Can it be said that such a candidate is not a
H person who has competed with the general category in an open
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 345
& ORS. [SURINDER SINGH NIJJAR, J.]
competition. It is noticed that under GOs (Government Orders) A
dated 11.04.1991, 19.12.1991 and 16.04.1992 and the
clarification dated 19th October, 1992, it was provided that a
reserved category candidate cannot compete with the open
category candidate(s) after availing preferences which result in
lowering of the prescribed standards. Such a candidate would B
only be considered against seat/post for the reserved category.
However, after the promulgation of the 1994 Act and issuance
of the Instructions dated 25th of March, 1994, the State
Government has not treated relaxation in age and fee as
relaxation in the standard of selection. Therefore, even if a c
candidate has availed concession in fee and or age limit, it
cannot be treated to be a relaxation in standard of selection.
Therefore, it would not deny a reserved category candidate
selection in Open Competition with General Category
candidates. Such concessions can be granted by the State 0
under Section 8(1) of the Act. The Division Bench has also held
that a relaxation in age and concession in fee are provisions
pertaining to eligibility of a candidate to find out as to whether
he can appear in a competitive test or not and by itself do not
provide any indicia of open competition. The competition would
E
start only at a stage when all the persons who fulfill all the
requisite eligibility qualification, age etc. are short listed. The
candidates in the zone of consideration entering the list on the
basis of aforesaid qualifications would thereafter participate in
competition and open competition would commence therefrom.
Therefore, concession granted under Section 8 would not F
disentitle a reserved category candidate of the benefit under
Section 3 sub-Section (6).
18. In view of the above legal position, it has been held
that if a reserved category candidate has secured marks more G
than the last General Category candidate, he is entitled to be
selected against the unreserved seat without being adjusted
against the reserved seat. According to the Division Bench,
merely because 183 candidates, belonging to the reserved
category, have been successful against unreserve~ seats would H
346 SUPREME COURT REPORTS [201 OJ 1 S.C.R.
A not result in reverse discrimination, as apprehended by the
petitioners. This is particularly so as selection of such reserved
category candidate against the unreserved seats would not be
material for the purpose of applying the principle of reservation
being limited to a total of 50%.
B
19. The Division Bench has also held that the reservation
in favour of women is constitutionally permissible and is valid.
On issue No.5 it has been held that in view of the GO dated
26.02.1999 (para 4), the 52 vacancies of general category kept
reserved for women candidates have been illegally carried
C forward for the next selection instead of filling in from the
general category male candidates. However, since the posts
remained vacant, the same had to be filled from the general
category male candidates and could not be carried forward.
D 20. Reservation in favour of sportspersons quota (2%) has
also been upheld. It was held that the aforesaid reservation has
to operate horizontally, therefore, the 29 vacancies which
remained unfilled could not have been carried forward. The
observations made by the Single Judge on this issue have
E been approved. A direction has been issued as follows:-
"We direct the respondent-authorities to fill in the unfilled
vacancies reserved for women candidates and sportsmen
from suitable candidates of respective category on the
basis of merit list and send them for training and provide
F all other benefits, if any as per rules. However, we may add
here, since the respondents did not hold recruitment for
sports persons in the present selection and we are
informed that a separate selection was held, therefore, we
provide that the vacancies remain unfilled from the
G separate selection held for sportsmen against 29
vacancies separated from the impugned selection, only
those remaining vacancies shall be made available to the
respective candidates of this selection."
H 21. The aforesaid findings of the Division Bench have been
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 347
& ORS. [SURINDER SINGH NIJJAR, J.]
challenged in these appeals by the unsuccessful candidates as A
well as the State of U. P.
22. We have heard learned counsel for the parties.
23. Mr. L.N. Rao, learned Sr. Counsel appearing on behalf
of the appellants submitted that the cardinal issue raised in B
these appeals is whether the reserved category candidates
who had taken the benefit of age or fee relaxation, are entitled
to be counted as general category candidates. According to
the learned Sr.Counsel, the Division Bench has erred in law in
concluding that relaxation in age and fee cannot be treated to C
be relaxation in standard of selection and shall not deny a
reserved category candidate's selection in Open Competition
with General Category candidate. According to learned Sr.
Counsel, the benefit of reservation under Article 16(4) of the
Constitution of India is a group right whereas under Article 16 D
(1) of the Constitution of India, it is an individual right. It is
emphasized that reservation under Article 16(4) of the
Constitution of India will take into its fold concessions. Once a
candidate falls within the reserved category, he/she can only
exit the Group i.e. from the benefit of Article 16(4) of the E
Constitution of India to Article 16(1) of the Constitution of India
on fulfillment of two circumstances, namely, (a) imposition of a
creamy layer and (b) merit selection. That is where there is a
level playing field in respect of the selection process, without
any benefit under Article 16(4) of the Constitution of India. F
According to the learned Sr. Counsel, a level playing field would
be of candidates who have not availed of any concessions or
relaxation. All things have to be equal for all the candidates.
24. According to learned Sr. Counsel, there is a distinction
between relaxation and concession which pertain to a particular G
selection process and mere support mechanism (such as
General Coaching) independent of a criteria for a particular
selection.
25. According to the learned Sr. Counsel, selection H
348 SUPREME COURT REPORTS [2010] 1 S.C.R.
A process would include all stages. There can be no distinction
that relaxation in age and fee can be treated as provisions
pertaining to eligibility i.e. to bring a candidate within the zone
of consideration. According to the learned Sr. Counsel, it is hair
splitting to divide the selection process into further parts. Each
s undermines the concept of "level playing field". Learned Sr.
Counsel further submitted that the Division Bench has
misinterpreted Section 3 of the Act of 1994. It has to be read
as a whole. Section 8 is in nature of exception to Section 3 (6),
because it creates a non-level playing field.
c 26. In order to emphasize that reservation under Article 16
(4) of the Constitution of India is a group right. and includes
preferences, concessions and exemptions, Mr. L.N. Rao relied
on certain observations of this Court made in the case of Indra
Sawhney and others vs. Union of India and others, 1992 Supp
D (3) Supreme Court Cases 217. According to him. the fact that
only age and fee relaxations were given does not take the
reserved category candidates out of the group category. He has
also relied on the judgment rendered in the case of Post
Graduate Institute of Medical Education & Research,
E Chandigarh and others vs. K.L.Narsimhan and another, 1997
(6) sec 283 in support of the submission that once a
candidate takes advantage of relaxation in the eligibility criteria,
he/she has to be treated as a reserved category candidate.
F 27. With regard to the interpretation to be placed on the
Act of 1994, Mr. L.N.Rao submitted that Section 3 preserves
the definition of the group throughout. According to him,
Sections 3 (6) and Section 8 are to be read together in the
following way i.e. in Section 3(6). the term "gets selected on
the basis of merit in an open competition" denotes a level
G playing field in Open Competition permitting exit from the group
into the merit category. Section 8 lowers the level playing field
"for any competitive examination" and clubs three categories
together- (a) fees. (b) interview and (c) age limit. According to
the learned Sr. Counsel, the invocation of Section 8 wholly
H
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 349
& ORS. [SURINDER SINGH NIJJAR, J.]
excludes the operation of Section 3 (6) to which Section 8 is A
an exception. He further submitted that relaxation and
concessions may be of various kinds. Each is a part of Article
16 (4) of the Constitution of India and could have egalitarian
consequences. In support of the submissions, reliance is placed
on observations of this Court made in paragraph 743 in the B
case of Indra Sawhney (supra). According to the learned Sr.
Counl)el, there is a distinction between social support
- mechanisms prior to an examination, (which are also a part of
\Article 16 (4) of the Constitution of India) and the relaxations/
.· concessions which relate to the selection process itself. c
According to the learned Sr. Counsel, supplemental and
ancillary provisions to ensure full availment of provisions for
reservation would be a part of reservation under Article 16 (4)
of the Constitution of India. He submitted that the selection
process has to be seen as a whole. It cannot be split up into 0
different parts. Section 8 is an exception to Section 3(6). In view
of the above, according to the learned Sr. Counsel, the Division
Bench has erroneously held that in view of Section 8 of the Act
of 1994, reserved category candidates can be permitted to
compete with the General Category candidates. Learned Sr. E
Counsel has also submitted that the learned Single Judge has
wrongly distinguished the judgment in the case of
K.L.Narsimhan (supra) on the basis that it was over-ruled by
a larger five Judges Bench in the case of Post Graduate
Institute of Medical Education & Research, Chandigarh vs.
Faculty Association and others, (1998) 4 SCC 1. The F
aforesaid judgment was over-ruled only on one particular point
raised in the review application. The aforesaid judgment had
decided three appeals in a common judgment. Review was filed
only in one. Therefore, the judgment in other cases is not over-
ruled. It has in fact been subsequently referred to in Dr.Preeti · G
Srivastava and Anr. v. State of M.P. and Ors., 1999(7) SCC
120, Bharati Vidyapeeth and Ors v. State of Maharashtra and
Anr., 2004 (11) sec 755 and State of Madhya Pradesh and
Ors. v. Gopal D. Tirpathi and Ors., 2003 (7) SCC 83. Therefore,
according to Mr. L.N.Rao, the reasoning given therein is still H
350 SUPREME COURT REPORTS [2010] 1 S.C.R.
A relevant. Learned Sr. Counsel then relied on the judgment in
the case of Union of India and another v. Satya Prakash and
others, JT 2006 (4) SC 524, in support of the submission that
only a candidate who has been selected without taking
advantage of any relaxation/concession can be adjusted
B against a seat meant for General Category Candidate.
Learned Sr. Counsel then submitted that the vacancies which
are reserved for Women candidates remained unfilled, and
therefore, ought to have been filled from the men candidates
belonging to the General Category. Even these vacancies have
c been illegally carried forward. The reservation in favour of
women is referable to Article 15 (3) of the Constitution of India
and not Article 16 (4) of the Constitution of India. Therefore, it
is horizontal reservation in which carry forward rule would not
be applicable. Even with the carry forward rule which is
applicable only to vertical reservations, 50% cap as approved
0
in Indra Sawhney case (supra) cannot be permitted to be
breached.
28. In fact in the present case, the reserved category
candidates have occupied one third of the posts meant for the
E General Category. If the argument of the State is accepted in
addition to the quota of 50% (with carry forward), another 183
out of 1014 (18%) would be added. Learned Sr. Counsel
reiterated that the purpose of reservation is not to distribute
largesse, but to create empowerment among the
F disadvantaged. The test is, therefore, "adequacy", not
mechanical over-empowerment, which must be constantly
maintained. Learned Sr. Counsel also emphasized that the
provisions contained in Article 16 (4) (a) and (b) of the
Constitution of India are all enabling provisions and subject to
G (a) creamy layer, (b) 50% cap (c) compelling reasons and (d)
proportionality. In the present case, the State has failed to give
any details with regard to adequacy of representation. Finally,
learned Sr. Counsel submitted that reservation in favour of
women is even otherwise violative of Article 16 (2) of the
H Constitution of India.
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 351
& ORS. [SURINDER SINGH NIJJAR, J.]
29. On the 0th.er hand, Mr. Dwivedi, learned Senior A
counsel appearing on behalf of the respondents submitted that
in fact no cause of action has arisen in favour of the appellants.
All of them are qualified candidates who did not make it to the
final select list on the basis of comparative merit. He then
submitted that in fact the selected candidates who are likely to B
be affected, have not been made parties. It has also been
submitted that in any case, no relief can be granted to the
appellants, at this stage as all the posts had already been filled.
Therefore, the submissions made by the appellants are merely
an academic exercise. According to him, the Division Bench c
has correctly interpreted Section 3 of the Act of 1994. He further
submits, by the suggested interpretation, the appellants seek
to add the words from Section 8 to sub-section (6) of Section
3. There is no relaxation in the qualifications. The concession
is only in the matter of fee and the age which pertains only to D
eligibility of a candidate to apply for the post. The criteria for
selection for all the candidates is identical, which has not been
lowered, by the concessions/relaxations in fee and age. Under
Section 3(6), the candidate even though belonging to a
reserved category is entitled to be treated as a General
Category Candidate. According to Mr. Dwivedi, the Division E
Bench has correctly observed that taking advantage of fee
concession or age relaxation would not be a bar for the
reserved category candidates to be treated as general category
candidates. They can be taken out of General Category only
as an exception i.e. if their standard is lowered. On the other F
hand, if by relaxation, the reserved category candidate gets no
advantage, he cannot be compartmentalized. The judgment
relied upon by the appellants in K.L.Narsimhan (supra) has
been over-ruled in the subsequent judgment of this Court in the
case of Faculty Association (supra). Once the judgment is G
over-ruled, it cannot be argued that it is only partly over-ruled.
Learned Senior counsel also submitted that the particular
sentence relied upon by learned Sr. Counsel appearing on
behalf of the appellants in the case of K.L.Narsimhan (supra)
is a stray observation and cannot be treated as an authoritative H
352 SUPREME COURT REPORTS [2010] 1 S.C.R.
A pronouncement or a precedent. In any event, according to him,
in the case of K.L.Narsimhan (supra), the issue of relaxation
in age or fee was not considered. In the case of Satya Prakash
(supra), it has been clearly held that candidates who have been
recommended without resorting to the relaxed standard shall
B not be adjusted against the vacancies reserved for Scheduled
Castes, Scheduled Tribes and Other Backward Classes.
According to the learned Senior counsel, even Indra Sawhney
case (supra) only lays down the meaning of "Reservation" in
terms of Article 16 (4) of the Constitution of India.
c 30. SLP (C ) Nos.14078-80 of 2008 have been filed by
the State of U.P. challenging the common final judgment of the
Division Bench dated 22.12.2006 and the final order dated
18.12.2007 declining to modify or recall the earlier judgment
dated 22.12.2006. In support of the appeals, Mr. Dinesh
D Dwivedi, learned Sr. Counsel submitted that the learned Single
Judge of the High Court had taken notice of the fact that total
posts of SICP were 1231 (male)+ 148 (female). 2% posts were
reserved for sports persons. Therefore, 29 posts of SICP and
5 posts of PC were earmarked for Sports Quota. Since 608
E male candidates belonging to the General Category were
selected, 67 posts of General category were available for
women. However, only 15 candidates had been selected.
Therefore, 52 posts were filled up on merit from male
candidates in accordance with the Government Order dated
F 26.2.1999. Therefore, it was noticed by the learned Single
Judge that no post in General Category was vacant. Having
come to the aforesaid conclusion, the learned Single Judge
had wrongly issued the directions in the final paragraph of the
judgment to recalculate the number of posts of General
G Category candidates by applying 2% reservation for Sportsmen
horizontally and adding 2% posts of sportsmen also while
calculating the total number of vacancies of General Category
candidates. This direction had been challenged by the State
and the Director General of Police in Special Appeal Nos.910
H of 2005 and 592 of 2006. In spite of the aforesaid categoric
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 353
& ORS. [SURINDER SINGH NIJJAR, J.)
finding of the learned Single Judge, that there were no vacant A
posts, the Division Bench concluded that the vacancies which
were left unfilled were carried forward for next selection, instead
of filling in from the General Category of male candidates. In
fact Government Order dated 26.2.1999 was fully complied
with. According to the learned Sr. Counsel, the direction issued B
by the Division Bench to fill up the unfilled vacancies reserved
for women candidates and sportsmen from suitable candidates
of respective categories has been issued without taking into
account that all the vacant posts have been filled, in accordance
with the Government Order. The Division Bench has failed to c
appreciate that no unfilled posts reserved for women and the
_Sportsmen quota have been carried forward.
31. Dr. Rajeev Dhawan, learned Sr. Counsel reiterated the
submissions made by Mr.L.N. Rao. According to Dr.Dhawan
the judgment in the case of K.L.Narsimhan (supra) has only D
been partly over-ruled in one case. The aforesaid judgement
had decided three appeals by a common judgement, therefore,
the reasoning of the judgment is still intact and would be
applicable to the facts and circumstances of the present case.
Since the reserved category candidates have been given E
relaxation in the age and the fee, the same would fall within the
group right of reservation under Article 16 (4) of the Constitution
of India. Learned Sr. Counsel reiterated that once a candidate
takes advantage of reservation/concessions under Article 16 (4)
of the Constitution of India, he/she cannot be permitted to be F
appointed against the seat meant for the General Category .
. According to the learned Sr. counsel, all parts of Section 3 of
the Act of 1994 talk of group rights. There cannot be an exit from
reservation, once a benefit is taken. In other words, a candidate
covered under Article 16 (4) of the Constitution of India cannot G
also be a candidate under Article 16 (1) of the Constitution of
India.
32. We have considered the submissions made by the
learned counsel for the parties.
H
354 SUPREME COURT REPORTS [2010) 1 S.C.R.
A 33. The core issue in the writ petitions was with regard to
filling up the General Category posts by candidates belonging
to the reserved category candidates on their obtaining more
marks than the last candidate in the General Category. The
submissions made by the learned counsel for the appellants
B are all over-lapping. Reference to case law is also common. In
our opinion, it is not necessary to consider the larger issues
raised by the learned counsel for the parties with regard to the
nature and extent of reservation. These issues have been
dilated upon by this Court in numerous judgments. The Division
C Bench in the impugned judgment has traced the history of
reservation at considerable length. It has also distinguished
between vertical and horizontal reservations. It has also
correctly concluded that in case of horizontal reservation, the
carry forward rule would not be applicable. All these issues are
no longer res integra, in view of the authoritative judgment
D rendered in the case of Indra Sawhney (supra). It can also be
no longer disputed that reservation under Article 16 (4) of the
Constitution of India aims at group backwardness. It provides
for group right. Article 16 (1) of the Constitution of India
guarantees equality of opportunity to all citizens in matters
E relating to employment. However, in implementing the
reservation policy, the State has to strike a balance between
the competing claims of the individual under Article 16(1) and
the reserved categories falling within Article 16(4). A
Constitution Bench of this Court in the case of Indra Sawhney
F case (supra), this Court reiterated the need to balance the
Fundamental Right of the individual under Article 16(1) against
the interest and claim of the reserve category candidates under
Article 16(4) of the Constitution.
"It needs no emphasis to say that the principal aim of
G
Article 14 and 16 is equality and equality of opportunity
and that Clause (4) of Article 16 is but a means of
achieving the very same objective. Clause (4) is a special
provision - though not an exception to Clause (1 ). Both the
provision have to be harmonized keeping in mind the fact
H
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 355
& ORS. [SURINDER SINGH NIJJAR, J.]
that both are but the restatements of the principle of equality A
enshrined in Article 14. The provision under Article 16(4)
- conceived in the interest of certain sections of society -
should be balanced against the guarantee of equality
enshrined in Clause (1) of Article 16 which is a guarantee
held out to every citizen and to the entire society. If is B
relevant to point out that Dr. Ambedkar himself
contemplated reservation being "confined to a minority of
seats" (see his speech in Constituent Assembly, set out in
para 28). No. other member of the Constituent Assembly
suggested otherwise. It is thus, clear that reservation of a c
majority of seats vitere never envisaged by the found
Fath'ers. Nor are we satisfied that the present context
requires us to depart from thatconcept."
34. In PG/ MER vs. Faculty Association (supra in para 32
the same principle was reiterated as under:- D
"32. Article 14, 15 and 16 including Articles 16(4), 16(4-
A) must be applied in such a manner so that the balance
is struck in the matter of appointments by creatin'g
reasonable opportunities for the reserved classes and also E
for the other members of the community who do not belong
to reserved classes. Such view has been indicated in the
Constitution Bench decisions of this Court in Balaji case,
Devendasan case and Sabharwal case. Even in Indra
Sawhney case the same view has been held by indicating F
that only a limited reservation not exceeding 50% is
permissible. It is to be appr~ciated that Article 15(4) is an
enabling provision like Article 16(4) and the reservation
under either provision should not exceed legitimate limits.
In making reservations for the backward classes, the State G
cannot ignore the fundamental rights of the rest of the
citizens. The special provision under Article 15(4 [sic 16(4)]
must therefore strike a balance between several relevant
considerations and proceed objectively. In this connection
reference may be made to the decisions of this Court in
H
356 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A State of AP vs. USV Bairam and A Rajendran v. Union
of India, it has been indicated in Indra Sawhney case that
Clause (4) of Article 16 is not in the nature of an exception
to Clauses (1) and (2) of Article 16 but an instance of
classification permitted by Clause (1 ). It has also been
8 indicated in the said decision that Clause (4) of Article 16
does not cover the entire field covered by Clauses (1) and
(2) of Article 16. In Indra Sawhney case this Court has also
indicated that in the interests of the Backward clauses of
citizens, the State cannot reserve all the appointments
c under the State or even a majority of them. The doctrine
of equality of opportunity in Clause (1) of Article 16 is to
be reconciled in favour of backward clauses under Clause
(4) of Article 16 in such a manner that the latter while
serving the cause of backward classes shall not
unreasonably encroach upon the field of equality."
D
35. These observations make it abundantly clear that the
reservations should not be so excessive as to render the
Fundamental Right under Article 16(1) of the Constitution
meaningless. In Indra Sawhney (supra), this Court has observed
E as under:-
"In our opinion, however, the result of application of carry-
forward rule, in whatever manner it is operated, shall not
result in breach of 50% rule."
F 36. Therefore, utmost care has to be taken that the 50%
maximum limit placed on reservation in any particular year by
this Court in Indra Sawhney case (supra) must be maintained.
It must further be ensured that in making reservations for the
members of the Scheduled Castes and Scheduled Tribes, the
G maintenance of the efficiency of administration is not impaired.
37. It is in this context, we have to examine the issue as
to whether the relaxation in fee and upper age limit of five years
in the category of OBC candidates would fall within the
H definition of "reservation" to exclude the candidates from open
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 357
& ORS. [SURINDER SINGH NIJJAR, J.]
competition on the seats meant for the General Category A
Candidates. Taking note of the submissions, the Division Bench
has concluded by considering questions 1, 2 and 3 that
concession in respect of age, fee etc. are provisions pertaining
to eligibility of a candidate to find out as to whether he can
appear in the competitive test or not and by itself do not provide B
any indicia of open competition. According to the Division
Bench, the competition would start only at the stage when all
the persons who fulfill the requisite eligibility conditions, namely,
qualification, age etc. are short-listed. We are of the opinion
that the conclusion reached by the Division Bench on the issue c
of concessions and relaxations cannot be said to be erroneous.
38. The selection procedure provided the minimum age
for recruitment as 21 years and the maximum age of 25 years
on the cut off date. Relaxation of age for various categories of
candidates in accordance with the Government Orders issued D
from time to time was also admissible. This included five years'
relaxation in age to Scheduled Caste, Scheduled Tribes, Other
Backward Classes and dependents of Freedom Fighters.
Relaxation of age was also provided in case of Ex-servicemen.
The period of service rendered in Army would be reduced for E
computing the age of the Ex-Army personnel. After deducting
the period of service they had rendered in the Army, they would
be deemed eligible. These were mere eligibility conditions for
being permitted to participate in the selection process.
Thereafter, the candidates had to appear in a Preliminary F
Written Test. This consisted of 300 maximum marks and the
candidates were required to secure 50% or more marks to
participate in the further selection process. Thereafter, the
candidates had to undergo .physical test consisting of 100
marks. Again a candidate was required to secure at least 50% G
or more marks. It is not disputed before us that the standard of
selection in the Preliminary Written Test and the Physical Test
was common to all the candidates. In other words, the standard
was not lowered in case of the candidates belonging to the
reserved category. The Preliminary Written Test and the H
358 SUPREME COURT REPORTS [2010) 1 S.C.R.
A Physical Test were in the nature of qualifying examinations to
appear in the Main Written Test. The marks obtained in the
Preliminary Written Examination and the Physical Test were not
to be included for determination of final merits. It was only
candidates who qualified in the preliminary written test and the
B physical test that became eligible to appear in the main written
test which consisted of 600 marks. As noticed earlier, this had
two papers- General Hindi, General Knowledge and Mental
Aptitude Test. A candidate who secured 40% or above would
be declared successful in the written test. Thereafter, the
c candidates were to appear for interview of 75 marks. The final
merit list would be prepared on the basis of merit secured in
the main written test and the interview. ~andidates appearing
in the merit list, so prepared, would be declared selected. It is
common ground that more than 50000 candidates appeared
0 in the preliminary written test. Upon declaration of the result on
22.9.2000, only 3,325 candidates were found successful.
Thereafter, the physical test which was conducted from
29.10.2000 to 6.11.2000 reduced the successful candidates
to 1454. It was these 1454 candidates who sat in the main
E written test held on 29.4.2001. Upon declaration of result, 1178
candidates were declared successful.
The candidates who were successful in the written test
we·re subjected to an interview between 18.6.2001to1.7.2001.
The final result published on 6.7.2001 declared only 1006
F candidates successful.
39. In view of the aforesaid facts, we are of the considered
opinion that the submissions of the appellants that relaxation
in fee or age would deprive the candidates belonging to the
G reserved category of an opportunity to compete against the
General Category Candidates is without any foundation. It is
to be noticed that the reserved category candidates have not
been given any advantage in the selection process. All the
candidates had to appear in the same written test and face the
same interview. It is therefore quite apparent that the
H
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 359
& ORS. [SURINDER SINGH NIJJAR, J.]
concession in fee and age relaxation only enabled certain A
candidates belonging to the reserved category to fall within the
zone of consideration. The concession in age did not in any
manner tilt the balance in favour of the reserved category
candidates, in the preparation of final merit/select list. It is
permissible for the State in view of Articles 14, 15, 16 and 38 B
of the Constitution of India to make suitable provisions in law
to eradicate the disadvantages of candidates belonging to
socially and educationally backward classes. Reservations are
a mode to achieve the equality of opportunity guaranteed under
Article 16 (1) of the Constitution of India. Concessions and c
relaxations in fee or age provided to the reserved category
candidates to enable them to compete and seek benefit of
reservation, is merely an aid to reservation. The concessions
and relaxations plac;e the candidates at par with General
Category candidates. It is only thereafter the merit of the
0
candidates is to be determined without any further concessions
in favour of the reserved category candidates. It has been
recognized by this Court in the case of Indra Sawhney (supra)
that larger concept of reservation would include incidental and
ancillary provisions with a view to make the main provision of E
reservation effective. In the case of Indra Sawhney (supra), it
has been observed as under:-
"743. The question then arises whether clause (4) of Article
16 is exhaustive of the topic of reservations in favour of
back.ward classes. Before we answer this question, it is F
well to examine the meaning and content of the expression
"reservation". Its meaning has to be ascertained having
regard to the context in which it occurs. The relevant words
are "any provision for the reservation of appointments or
posts". The question is whether the said words G
contemplate only one form of provision namely reservation
simplicitor, or do they take in other forms of special
provisions like preferences, concessions and exemptions.
In our opinion, reservation is the highest form of special
provision, while preference, concession and exemption are H
360 SUPREME COURT REPORTS [2010] 1 S.C.R.
A lesser forms. The constitutional scheme and context of
Article 16 (4) induces us to take the view that larger
concept of reservations takes within its sweep all
supplemental and ancillary provisions and relaxations,
. consistent no doubt with the requirement of maintenance
B of efficiency of administration-the admonition of Article
335. The several concessions, exemptions and other
measures issued by the Railway Administration and
noticed in Karamchari Sangh are instances of
supplementary, incidental and ancillary provisions made
c with a view to make the main provision of reservation
effective i.e., to ensure that the members of the reserved
class fully avail of the provision for reservation in their
fav-0ur. .... "
40. In our opinion, these observations are a complete
D answer to the submissions made by Mr. L.N. Rao and Dr. Rajiv
Dhawan on behalf of the petitioners.
41. We are further of the considered opinion that the
reliance placed by Mr.Rao and Dr.Dhawan on the case of
E K.L.Narsimhan (supra) is misplaced. Learned Sr. Counsel had
relied on the following observations:-
"5 ...... 0nly one who does get admission or appointment by
virtue of relaxation of eligibility criteria should be treated
as reserved candidate."
F
41. The aforesaid lines cannot be read divorced from the
entire paragraph which is as under:-
"5. It was decided that no relaxation in respect of
qualifications or experience would be recommended by
G
Scrutiny Committee for any of the applicants including
candidates belonging to Dalits and Tribes. In furtherance
thereof, the faculty posts would be reserved without
mentioning the specialty; if the Dalit and Tribe candidates
were available and found suitable, they would be treated
H
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 361
& ORS. [SURINDER SINGH NIJJAR, J.]
as reserved candidates. If no Dalit and Tribe .candidate A
was found available, the post would be filled fro~ general
candidates; otherwise the reserved post would be carried
forward to the next year/advertisement. It is settled law that
if a Dalit or Tribe candidate gets selected for admission
to a course or appointment to a post on the basis of merit B
as general candidate, he should not be treated as reserved
candidate. Only one who does get admission or
appointment by virtue of relaxation of eligibility criteria
should be treated as reserved candidate."
42. These observations make it clear that if a reserved C
category candidate gets selected on the basis of merit, he
cannot be treated as a reserved candidate. In the present case,
the concessions availed of by the reserved category candidates
in age relaxation and fee concession had no relevance to the
determination of the inter se merit on the basis of the final D
written test and interview. The ratio of the aforesaid judgment
in fact permits reserved category candidates to be included in
the General Category Candidates on the basis of merit.
43. Even otherwise, merely quoting the isolated E
observations in a judgment cannot be treated as a precedent
de hors the facts and circumstances in which the aforesaid
observation was made. Considering a similar proposition in the
case of Union of India & Ors. vs. Dhanwanti Devi and others,
1996(6) SCC 44, this Court observed as follows:- F
"9 ......... It is not everything said by a Judge while giving
judgment that constitutes a precedent. The only thing in a
Judge's decision binding a party is the principle upon
which the case is decided and for this reason it is important
to analyse a decision and isolate from it the ratio G
decidendi. A decision is only an authority for what it
actually decides. What is of the essence in a decision is
its ratio and not every observation found therein nor what
logically follows from the various observations made in the
judgment. It would, therefore, be not profitable to extract a H
362 SUPREME COURT REPORTS [2010) 1 S.C.R.
A sentence here and there from the judgment and to build
upon it because the essence of the decision is its ratio and
not every observation found therein. It is only the principle
laid down in the judgment that is binding law under Article
141 of the Constitution."
B
44. In the case of State of Orissa & Ors. vs. Md. 11/iyas
reported in 2006(1) SCC 275, the Supreme Court reiterates
the law, as follows:-
"12 ............. Reliance on the decision without looking into
c the factual background of the case before it, is clearly
impermissible. A decision is a precedent on its own facts.
Each case presents its own features. It is not everything
said by a Judge while giving judgment that constitutes a
precedent. A decision is an authority for what it actually
D decides. What is of the essence in a decision is its ratio
and not every observation found therein nor what logically
flows from the various observations made in the judgment.
The enunciation of the reason or principle on which a
question before a court has been decided is alone binding
E as a precedent.
A case is a precedent and binding for what it explicitly
decides and no more. The words used by Judges in their
judgments are not to be read as if they are words in an
Act of Parliament."
F
45. We may now examine the ratio in Narasimhan case
(supra) keeping in view the aforesaid principles. On
16.11.1990 an advertisement was issued by Post Graduate
Institute of Medical Education and Research (hereinafter
G referred to as 'PGI') relating to recruitment to the post of
Assistant Professor; out of 12 posts, 8 was reserved for
Scheduled Caste and 4 posts were reserved for Scheduled
TribE~s. Since all the available posts were sought to be filled on
the basis of reservation, the same were challenged in two writ
H petitions in the Punjab and Haryana High Court, Chandigarh.
JITENDER KUMAR SINGH & ANR. v: STATE OF U.P. 363
& ORS. [SURINDER SINGH NIJJAR, J.]
Both the writ petitions were allowed by the learned Single Judge. A
It was held that the post of Assistant Professor in various
disciplines is a single post cadre; reservation for Scheduled
Caste and Scheduled Tribes would amount to 100%
reservation; accordingly, it is unconstitutional. The said writ
petition pertained to admission to Doctoral courses and Ph.D. B
programme. This was also allowed by the learned Single Judge
on the ground that admission to the aforesaid courses on the
basis of reservation, undermines efficiency and is detrimental
to excellence, tendering it unconstitutional. Appeals against the
judgements of the learned Single Judge were dismissed by the c
High Court. Therefore, three appeals had been filed in this
Court. Two issues involved therein were (a) whether reservation
in appointment to the post of Assistant Professors in various
disciplines in the PGI is violative of Article 14 and 16( 1) of the
Constitution of India; and (b) whether there could be reservation D
in admission to the Doctoral courses and Ph.D. programmes:
A number of posts of Assistant Professor in diverse disciplines
had been advertised. It was not in dispute that the post of
Assistant Professor in each Department was a single post
cadre, but carried the same scale of pay and grade in all
disciplines. It was also not disputed that the posts in different E
specialties/super-specialties prescribed distinct and different
qualifications. The posts were also not transferable from one
specialty to another, however, the PGI had clubbed all the posts
of Assistant Professor for the purpose of reservation in view
of the fact that they are in the same pay scale and have same F
designation. The High Court had allowed the writ petition by
relying on judgement of this Court i.n Chakradhar Paswan (Dr.)
. vs. State of Bihar (1998) 2 SCC 214. The ratio in the aforesaid
judgement was distinguished on the basis of the judgement in
Union of India vs. Madhav, (1997)2 SCC 332. The aforesaid G
judgement was reviewed by a larger Bench of five Judges of
this Court in the case of Post Graduate Institute of Medical
Education and Research, Chandigarh vs. Faculty Association
and others ( 1998) 4 sec 1. On behalf of the review petitioners
it was contended that judgement in Narasimhan case (supra) H
364 SUPREME COURT REPORTS [201 OJ 1 S.C.R.
A cannot be supported as in Madhav case (supra) the ratio in
the decision of Arati Ray Chaudhary vs. Union of India 1974
(1) SCC 87 was wrongly appreciated and the ratio was wrongly
stated. On the other hand, it was submitted by the learned
Solicitor General that the judgement in Madav case (supra)
B indicated the correct principle by giving very cogent reasons.
Therefore, no interference is called for against the decision in
Madhav case (supra) and the other decisions rendered by
following the decision. Upon consideration of the rival
submissions, it was observed as follows:-
c "29. In Madhav case in support of the view that even in
respect of single post cadre reservation can be made for
the backward classes by rotation of roster. the Constitution
Bench decision in Arati Ray Choudhury case has been
relied on. We have already indicated that in Arati case the
D Constitution Bench did not lay down that in single post
cadre, reservation is possible with the aid of roster point.
The Court in Arati case considered the applicability of
roster point in the context of plurality of posts and in that
context the rotation of roster was upheld by the Constitution
E Bench. The Constitution Bench in Arati case had made it
quite clear by relying on the earlier decisions of the
Constitution Bench in Balaji case and Devadasan case
that 100% reservation was not permissible and in no case
reservation beyond 50% could be made. Even the circular
F · on the basis of which appointment was made in Arati Ray
Choudhury case was amended in accordance with the
decision in Devadasan case. Therefore, the very premise
that the Constitution Bench in Arati case has upheld
reservation in a single post cadre is erroneous and such
G erroneous assumption in Madhav case has been on
account of misreading of the ratio in Arati Ray Choudhury
'case. It may be indicated that the latter decision of the
Constitution Bench in R.K. Sabharwal case has also
'proceeded on the footing that reservation in roster can
operate provided in the cadre there is plurality of post. It
H
JITENDER KUMAR SINGH & ANR. v, STATE OF U.P..365
& ORS. [SURINDER SINGH NIJJAR, J.]
has also been indicated in Sabharwal decision that the post A
in a cadre is different from vacancies.
46. From the above it becomes evident that the very
premise on the basis of which Madhav case was decided has
been held to be erroneous. Thereafter it is further observed in B
paragraph 30 that "it also appears that the decision in Indra
Sawhney case has also not been properly appreciated in
Madhav decision." The conclusion of the judgement is given
in paragraph 37 which is as under:-
"37. We, therefore, approve the view taken in Chakradhar C
Case that there cannot be any reservation in a single post
cadre and we do not approve the reasonings in Madhav
Case, Brij Lal Thakur case and Bageshwari Prasad case
upholding reservation in a single post cadre either directly
or by device of rotation of roster point. Accordingly, the D
impugned decision in the case of Post Graduate Institute
of Medical Education & Research, Chandigarh is,
therefore, allowed and the judgment dated 2.5.1997
passed in Civil Appeal No.3175 of 1997 is set aside."
E
47. Since the judgment and reasoning in Narasimhan
case (supra) were based on the reasoning in Madhav case
(supra), we are un;:ible to accept the submissions of the learned
counsel for the appellants that the reasoning in the aforesaid
judgement is still intact, merely because review was filed only
F
in one appeal out of three. The judgment in Narasimhan case
(supra) having been set aside, we are unable to accept the
submissions of the learned Senior counsel that the reasoning
would still be binding as a precedent.
48. Mere reference to the judgement in the cases· of Dr. G
Preeti Srivastava; Bharati Vidyapeet; and Gopal 0. Tirthani
am:J others (supra) would not re-validate the reasoning and ratio
in Narasimhan case (supra) which has been specifically set
aside by the larger Bench in Faculty Association case (supra).
H
366 SUPREME COURT REPORTS [2010) 1 S.C.R.
A We are, therefore, of the opinion that the reliance placed upon
the observations in Narasimhan case (supra) is wholly
misconceived.
49. In any event the entire issue in the present appeals
B need not be decided on the general principles of law laid down
in various judgments as noticed above. In these matters, we
are concerned with the interpretation of the 1994 Act, the
instructions dated 25.03.1994 and the GO dated 26.2.1999.
The controversy herein centres around the limited issue as to
whether an OBC who has applied exercising his option as a
C reserved category candidate, thus, becoming eligible to be
considered against a reserved vacancy, can also be
considered against an unreserved vacancy if he/she secures
more marks than the last candidate in the general category.
0 50. The State Legislature enacted the UP Public Service
(Reservation for Scheduled Castes and Scheduled Tribes) Act,
1993 (hereinafter referred to as the 'Act of 1993'). It was soon
replaced by the UP Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other Backward Classes)
E Ordinance, 1994. This was to provide a comprehensive
enactment for Scheduled Castes, Scheduled Tribes and OBCs.
The Ordinance was replaced by the Act of 1994 which came
into force w.e.f. 11.12.1993. Section 2 (c) of this Act defines
public service and posts as the service and post in connection
F with the affairs of the State and includes services and posts in
local authority, cooperative societies, statutory bodies.
government companies, educational institutions owned and
controlled by the State Government. It also includes all posts
in respect of which reservation was applicable by Government
Orders on the commencement of the Act. Section 3 of the Act
G of 1994 makes provisions with regard to the reservation in
favour of Scheduled Castes, Scheduled Tribes and Other
Backward Classes. Section 3 of the Act of 1994 provides as
under:-
H "3.Reservation in favour of Scheduled Castes, Scheduled
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 367
& ORS. [SURINDER SINGH NIJJAR, J.]
Tribes and Other Backward Classes- (1) In Public Services A
and Posts, there shall be reserved at the stage of direct
recruitment, the following percentage of vacancies to which
recruitments are to be made in accordance with the roster
referred to in Sub-section (5) in favour of the persons
belonging to Scheduled Castes, Scheduled Tribes and B
Other Backward Classes of citizens.
(a) in the case of Scheduled Castes Twenty-one percent;
(b) in the case of Scheduled Tribes Two per cent;
c
(c) in the case of other backward Twenty Seven percent;
Classes of citizens
Provided that the reservation under Clause (c ) shall not
apply to the category of other backward classes of citizens
D
specified in Schedule II.
(2 )If, even in respect of any year of recruitment, any
vacancy reserved for any category of persons under Sub-
section (1) remains unfilled, special recruitment shall be .
made for such number of times, not exceeding three, as E
may be considered necessary to fill such vacancy from
amongst the persons belonging to that category.
(3) If, in the third such recruitment, referred to in Sub-
section (2), suitable candidates belonging to the
F
Scheduled Tribes are not available to fill the vacancy
reserved for them, such vacancy shall be filled by persons
belonging to the Scheduled Castes.
(4) Where, due to non-availability of suitable candidates
. "t ~ '• / any of the vacancies reserved under Sub-section ( 1) G
remains unfilled even after special recruitment referred to
in Sub-section (2), it may be carried over to the next year
commencing from first of July, in which recruitment is to
be made, subject to the condition that in that year total
H
368 SUPREME COURT REPORTS [2010] 1 S.C.R.
A · reservation of vacancies for all categories of persons
mentioned in Sub-section (1) shall not exceed fifty one per
cent of the total vacancies.
(5) The State Government shall, for applying the reservation
under Sub-section (1 ), by a notified order, issue a roster
B
which shall be continuously applied till it is exhausted.
(6) If a person belonging to any of the categories
mentioned in Sub-section (1) gets selected on the basis
of merit in an open competition with general candidates,
c he shall not be adjusted against the vacancies reserved
for such category under Sub-section (1).
(7) If on the date of commencement of this Act, reservation
was in force under Government Orders for appointment to
D posts to be filled by promotion, such Government Orders
shall continue to be applicable till they are modified or
revoked."
Section 8 of the Act of 1994 reads as under:-
E "8. Concession and relaxation- (1) The State Government
may, in favour of the categories of persons mentioned in
sub-section (1) of Section 3, by order, grant such
concessions in respect of fees for any competitive
examination or interview and relaxation in upper age limit,
F as it may consider necessary.
(2) The Government orders in force on the date of
commencement of this Act, in respect of concessions and
relaxations, including concession in fees for any
competitive examination or interview and relaxation in
G upper age limit and those relative to reservation in direct
recruitment and promotion, in favour of categories of
persons referred to in Sub-section (1 ), which are not
inconsistent with the provisions of this Act, shall continue
to be applicable till they are modified or revoked, as the
H case may be."
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 369
& ORS. [SURINDER SINGH NIJJAR, J.]
51. Schedule II gives a list of category of persons to whom A
reservation under Section 3 (1) would not be available, as they
fall within the category of persons commonly known as "creamy
layer''. A perusal of Section 3 (1) would show that it provides
for re~ervation in favour of the categories mentioned therein at
the stage of direct recruitment. The controversy between the B
parties in these appeals is limited to sub-section (6) of Section
3 and Section 8 of the 1994 Act. It was strenuously argued by
Mr.Rao and Dr. Rajeev Dhawan that Section 3 (6) of the Act
of 1994 does not permit the reserved category candidates to
be adjusted against general category vacancies who had c
applied as reserved category candidate. In the alternative,
learned counsel had submitted that at least such reserved
category candidate who had appeared availing relaxation of
age available to reserved category candidates cannot be said
to have competed at par in Open Competition with General
0
category candidates, and therefore, cannot be adjusted against
the vacancies meant for General Category Candidates. We are
of the considered opinion that the concessions falling within
Section 8 of the Act of 1994 cannot be said to be relaxations
in the standard prescribed for qualifying in the written E
examination. Section 8 clearly provides that the State
Government may provide for concessions in respect of fees in
the competitive examination or interview and relaxation in upper
age limit. Soon after the enforcement of the 1994 Act the
Government issued instructions dated 25.03.1994 on the
subject of reservation for Scheduled Caste, Scheduled Tribe F
and other backward groups in the Uttar Pradesh Public
Services. These instructions, inter alia, provide as under:-
"4. If any person belonging to reserved categories is
selected on the basis of merits in open competition along G
with general candidates, then he will not be adjusted
towards reserved category, that is, he shall be deemed to
have been adjusted against the unreserved vacancies. It
shall be immaterial that he has availed any facility or
H
370 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A relaxation (like relaxation in age limit) available to reserved
category."
52. From the above it becomes quite apparent that the
relaxation in age limit is merely to enable the reserved category
candidate to compete with the general category candidate, all
8
other things being equal. The State has not treated the
relaxation in age and fee as relaxa'tion in the standard for
selection, based on the merit of the candidate in the selection
test i.e. Main Written Test followed by Interview. Therefore, such
relaxations cannot deprive a reserved category candidate of
C the right to be considered as a general category candidate on
the basis of merit in the competitive examination. Sub-section
(:2) of Section 8 further provides that Government Orders in force
on the commencement of the Act in respect of the concessions
and relaxations including relaxation in upper age limit which are
D not inconsistent with the Act continue to be applicable till they
are modified or revoked. Learned counsel for the appellants
had submitted that in the present appeals,1he issue is only with
regard to age relaxation and not to any other concessions. The
vires of Section 3 (6) or Section 8 have not been challenged
E before us. It was only submitted by the learned Sr. Counsel for
the petitioners/appellants that age relaxation gives an undue
advantage to the candidate belonging to the reserved category.
They are more experienced and, therefore, steal a march over
General Category candidates whose ages range from 21 to 25
F years. It is not disputed before us that relaxation in age is not
only given to members of the Scheduled Castes, Scheduled
Tribes and OBCs, but also the dependents of Freedom
Fighters. Such age relaxation is also given to Ex-servicemen
to the extent of service rendered in the Army, plus three years.
G In fact, the educational qualifications in the case of Ex-
servicemen is only intermediate or equivalent whereas for the
General category candidates it is graduation. It is also accepted
before us that Ex-servicemen compete not only in their own
category, but also with the General category candidates. No
H grievance has been made by any of the appellants/petitioners
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 371
& ORS. [SURINDER SINGH NIJJAR, J.]
with regard to the age relaxation granted to the Ex-servicemen. A
Similarly, the dependents of Freedom Fighters are also free
to compete in the General category if they secure more marks
than the last candidate in the General category. Therefore, we
do not find much substance in the submission of the learned
counsel for the appellants that relaxation in age "queers the B
pitch" in favour of the reserved category at the expense of the
General category. In our opinion, the relaxation in age does not
in any manner upset the "level playing field". It is not possible
to accept the submission of the learned counsel for the
appellants that relaxation in age or the concession in fee would c
in any manner be infringement of Article 16 (1) of the
Constitution of India. These concessions are provisions
pertaining to the eligibility of a candidate to appear in the
competitive examination. At the timewhen the concessions are
availed, the open competition has not commenced. It
0
commences when all the candidates who fulfill the eligibility
conditions, namely, qualifications, age, preliminary written test
and physical test are permitted to sit in the main written
examination. With age relaxation and the fee concession, the
reserved candidates are merely brought within the zone of
consideration, so that they can participate in the open E
. competition on merit. Once the candidate participates in the
written examination, it is immaterial as to which category, the
candidate belongs. All the candidates to be declared eligible
had participated in the Preliminary Test as also in the Physical
Test. It is only thereafter that successful candidates have been F
permitted to participate in the open competition.
53. Mr. Rao had suggested that Section 3 (6) ensures that
there is a level playing field in open competition. However,
Section 8 lowers the level playing field, by providing G
concessions in respect of fees for any competitive examination
or interview and relaxation in upper age limit. We are unable
to accept the aforesaid submission. Section 3 (6) is clear and
unambiguous. It clearly provides that a reserved category
candidate who gets selected on the basis of merit in open H
372 SUPREME COURT REPORTS [2010] 1 S.C.R.
A competition with general category candidates shall not be
adjusted against the reserved vacancies. Section 3(1), 3(6) and
Section 8 are inter-connected. Expression "open competition"
in Section 3 (6) clearly provides that all eligible candidates have
to be assessed on the same criteria. We have already noticed
8 earlier that all the candidates irrespective of the category they
belong to have been subjected to the uniform selection criteria.
All of them have participated in the Preliminary Written Test and
the Physical Test followed by the Main Written Test and the
Interview. Suc11 being the position, we are unable to accept the
C submissions of the learned counsel for the petitioners/
appellants that the reserved category candidates having availed
relaxation of age are disqualified to be adjusted against the
Open Category seats. It was perhaps to avoid any further
confusion that the State of UP issued directions on 25.3.1994
to ensure compliance of the various provisions of the Act. Non-
0
compliance by any Officer was in fact made punishable with
imprisonment which may extend to period of three months.
54. In view of the above, the appeals filed by the General
Category candidates are without any substance, and are,
E therefore, dismissed.
Civil Appeal Nos .................................................... of
2010
(Arising out of SLP (C) NOS. 14078-80 of 2008 and 19100 of
F 2009)
Leave granted.
55. In the appeal filed by the State of UP it was submitted
G that against the 67 posts of general category reserved for
women only 15 qualified candidates were available. They were
duly selected. 52 posts, which remained unfilled, were filled up
from the male candidates in accordance with GO dated
26.02.1999. Therefore, there remained no unfilled vacancy in
H the general category. Therefore, the Division Bench erred in
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 373
& ORS. [SURINDER SINGH NIJJAR, J.]
coming to the conclusion that 52 vacancies have been carried A
forward contrary to the aforesaid GO. It was further submitted
that the learned Single Judge erred by directing the appellants
to fill up the vacancy which were excluded from 2% sports
quota from the aforesaid selection. According to the appellants,
the advertisement clearly mentioned that the vacancies under B
the sports quota shall be filled separately. Therefore, the
learned Single Judge was not justified in directing for filling up
of these vacancies from this very selection. According to Mr.
Dwivedi, the entire factual position was p!aced before the
learned Single Judge in the counter affidavit which was duly c
noticed by the learned Single Judge as follows:-
"ln the counter affidavit the respondents have given details
pertaining to the candidates belonging to different
categories who were finally selected and the percentage
of reservation fixed according to number of posts.· D
According to the respondents total posts for.Sub Inspector
Civil Police were 1231 (male) + 148 female (ten per cent
posts were referred to be reserved for women). According
to the respondents the advertisement for 1634 posts was
published containing 1231 male + 148 (female) Sub E
Inspector Civil Police and 255 Platoon Commander. It was
stated that according to the police of the State 2% posts
were reserved for sports men hence against 1478 posts
of Sub Inspector 2% i.e. 29 posts of Sub Inspector were
earmarked for sports men and five posts of Platoon F
Commander in sports quota. It was thus stated that 1350
posts were for Sub Inspector civil police and 250 posts
were to be filled up by Platoon Commanders. The
percentage of reservation against the aforesaid posts have
been mentioned in paragraph 4 of the supplementary G
counter-affidavit which is extracted below.
H
37 4 SUPREME COURT REPORTS [201 OJ 1 S.C.R.
A 1-Posts 1350 for Sub Inspector, Civil Police
SI. Caste/Class Percentage Male Female Total
No. of reservation 10%
1. General Caste 50% 608 67 675
B (Unreserved)
2. 8 Backward 27% 328 37 365
Class
(reserved)
3. 8 Scheduled 21% 255 28 283
c Caste
(reserved)
4. 84 Scheduled 2% 24 03 027
Tribe
1005 1215 135 1350
D
5. Dependent of 2% 24 03 27
Freedom
Fighters
6. Ex-servicemen 1% 12 01 13
E
(2) 250 Posts for Platoon Commander, PAC
SI. Caste/Class Percentage Male
No of reservation
F
1. General Caste 50% 125
Unreserved)
2. Backward 27% 67
Class
(reserved}
G
3 8 Scheduled 21% 53
Caste
4 84 Scheduled 2% 05
Tribe
H 100% 250
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 375
& ORS. [SURINDER SINGH NIJJAR, J.]
It has been stated in the supplementary counter affidavit A
that 608 male belonging to general category were selected,
against 67 posts of general category for women only 15
women were available who were selected rest of 52 posts
were filled up on merit from male candidates in accordance
with the Government order dated 26.02.1999. It was stated B
that the total 675 posts in general category were filled up
and no post of general category is vacant. "
56. Mr. Dwivedi further submits that the learned Single
Judge took note of the averments made in paragraph 4 of the
supplementary counter affidavit, and yet issued a direction to C
recalculate the number of posts of general category candidates
by applying 2% reservation for sportsmen horizontally and
adding 2% posts of sportsmen also while calculating the number
of vacancy of general category candidates. Mr. Dwivedi further
submits that the learned Single Judge erred in holding that the D
Government order dated 26.02.1999 does not specifically
provide that the post which are not filled up by women
candidates are to be filled up from the male candidates. The
Division Bench was, therefore, justified that the aforesaid view
of the learned Single Judge was apparently erroneous and E
inconsistent to the specific provisions contained in paragraph
4 of GO dated 26.02.1999. The Division Bench, however,
committed a factual error in recording the following conclusion
"we are constrained to hold that the authorities erred in law
by leaving the vacancies kept for reserved women candidates F
unfilled instead of selecting and recommending suitable male
candidates of respective category of the same selection''.
57. Aggrieved against the aforesaid observations, the
appellants sought review of the aforesaid judgement which has G
been erroneously dismissed by simply recording:-
"We have head Sri G.S. Upadhyay, learned Standing
counsel appearing for the applicant. It is submitted that
this Court's observation at page 65 and 66 iR respect of
H
376 SUPREME COURT REPORTS [201 O] 1 S.C.R.
A vacancies reserved for woman and sports quota which
remain unfilled needs clarification.
We are of the view that our judgement is clear and it does
not suffer from any ambiguity and thus does not require to
be clarified or recalled."
B
58. As noticed earlier, Mr. L.N. Rao and Dr.Dhawan had
submitted that the vacancies reserved for women and for the
outstanding sportsperson had to be filled by applying "horizontal
reservation". No carrying forward of the vacancies was
C permissible.
59. We have considered ttie submissions made by the
learned counsel. It is accepted by all the learned counsel for
the parties that these vacancies had to be filled by applying the
0 principle of horizontal reservation. This was also accepted by
the learned Single Judge as well as by the Division Bench. This
in consonance with the law laid down by this Court in the case
of Indra Sawhney case (supra):-
"812. We are also of the opinion that this rule of 50%
E applies only to reservations in favour of backward classes
made under Article 16(4). A little clarification is in order
at this juncture; all reservations are not of the same nature.
There are two types of reservations, which may, for the
sake of convenience, be referred to as 'vertical
F reservations' and horizontal reservations'. The reservations
in favour of Scheduled Castes, Scheduled Tribes and
other backward classes [under Article 16(4)] may be called
vertical reservations whereas reservations in favour of
physically handicapped [under clause (1) of Article 16] can
G be referred to as horizontal reservations. Horizontal
reservations cut across the vertical reservations - what is
called interlocking reservations. To be more precise,
suppose 3% of the vacancies are reserved in favour of
physically handicapped persons; this would be a
H reservation relatable to clause ( 1) of Article 16. The
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 377
& ORS. [SURINDER SINGH NIJJAR, J.]
persons selected against this quota will be placed in the A
appropriate category; if he belongs to SC category he will
be placed in that quota by making necessary adjustments;
similarly, if he belongs to open competition (OC) category,
he will be placed in that category by making necessary
adjustments. Even after providing for these horizontal 8
reservations, the percentage of reservations in favour of
backward class of citizens remains - and should remain
- the same. This is how these reservations are worked out
_ in several States and there is no reason no to continue that
procedure."
c
60. The aforesaid principle of law has been incorporated
in the instructions dated 26.02.1999. Paragraphs 2 and 4 of
the aforesaid instructions which are relevant are hereunder:-
"2. The reservation will be horizontal in nature i.e. to say o
that category for which a women has been selected under
the aforesaid reservation policy for posts for women in
Public Services and on the posts meant for direct
recruitment under State Government, shall be adjusted in
the same category only; E
)()()()( )()()()( )()()()( xxx
4. If a suitable women candidate is not available for the
post reserved for women in Public Services and on the
posts meant for direct recruitment under State F
Government, then such a post shall be filled up from
amongst a suitable male candidate and such a post shall
not be carried forward for future;"
61. The Learned Single Judge whilst interpreting the G
aforesaid, has observed that it does not specifically provide for
posts which are not filled up by women candidates to be filled
up from the male candidates. This view is contrary to the
specific provision contained in Paragraph 4. The aforesaid
provision leaves no matter of doubt that any posts reserved for H
378 SUPREME COURT REPORTS (2010) 1 S.C.R.
A women which remain unfilled have to be filled up from amongst
suitable male candidates. There is a specific prohibition that
posts shall not be carried forward for future. Therefore, the view
expressed by the Learned Single Judge cannot be sustained.
62. We may also notice here that in view of the aforesaid
8 provisions, the State has not carried forward any of the general
category posts reserved for women and outstanding
sportspersons. Furthermore, all the posts remaining unfilled, in
the category reserved for women have been filled up by suitable
male candidates, therefore, clearly no post has been carried
C forward. Therefore the mandate in Indra Sawhney (supra) and
the G.O. dated 26.2.1999, have been fully coupled with. We are
also of the opinion that the conclusion recorded by the Division
Bench is without any factual basis. The factual position was
brought to the notice of Division Bench in the recall/modification
D application No.251407 of 2007. However, the recall/
modification application was rejected. We are, therefore, of the
opinion that the Division Bench erred in issuing the directions
to the appellants to fill in the unfilled vacancies reserved for
women candidates from suitable male candidates. This
E exercise had already been completed by the appellant-State.
• 63. As noticed earlier, the learned Single Judge despite
tat<ing note of the averments made in the supplementary counter
affidavit by the State, erroneously issued directions to
F recalculate the vacancies reserved for outstanding
sportspersons. It was specifically pointed out that a separate
advertisement had been published for recruitment on the post
reserved for outstanding sportsperson. It was also pointed out
that all the posts available in the category of sportsmen were
filled up in the subsequent selection. No post remained unfilled.
G Therefore, the conclusion of the learned Single Judge that the
(29 SICP) + (5 PC) i.e. 34 posts ought not to have been
deducted from the available 1478 posts for the purposes of
calculating the number of vacancies available to the general
category, was factually erroneous. It is not disputed before us
H
JITENDER KUMAR SINGH & ANR. v. STATE OF U.P. 379
& ORS. [SURINDER SINGH NIJJAR, J.]
that the principle of horizontal reservation would also apply for A
filling up the post reserved for outstanding sportsperson. It is
also not disputed before us that there could have been no carry
forward of any of the post remaining unfilled in the category of
putstanding sportsperson. As a matter of fact, there was no
carry forward of the vacancies. They were filled in accordance B
with the various instructions issued by the Government from time
to time. In our opinion the Division Bench erred in law in
concluding that since the advertisement did not mention that a
separate selection will be held, for the post reserved for
sportsmen, the same would not be permissible in law. The c
deduction of 34 posts for separate selection would not in any
manner affect the overall ratio of reservation as provided by law.
Furthermore, there is no carry forward of any post. The separate
selection is clearly part and parcel of the main selection. In view
of the factual situation, we are of the opinion, that the D
conclusions recorded by the learned Single Judge and the
Division Bench with regard to the 34 posts reserved for the
outstanding sportsmen category i.e. (29 SICP) + (5 PC) also
cannot be sustained.
64. Therefore, the aforesaid appeals filed by the State and E
the Director General of Police are allowed. The direction issued
by the learned Single Judge in the final paragraph as well as
the directions issued by the Division Bench in modification of
the order of learned Single Judge are set aside.
F
N.J. Appeals disposed of.
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