Holding

The appointment of Dr. Madhu Jain as Assistant Professor under the combined cadre, with due application of the 20% horizontal reservation for women, is legal and the High Court’s order setting it aside is reversed.

Summary

The appellant, Dr. Shiv Prasad, applied for the post of Associate Professor in the Department of Mathematics of Roorkee University and was recommended for that post. Respondent No.4, Dr. Madhu Jain, applied for the Assistant Professor position and was selected under the university's combined cadre of Associate/Assistant Professors, which included a horizontal reservation of 20% for women. Dr. Prasad filed a writ petition challenging Dr. Jain's appointment; the Uttarakhand High Court set aside her appointment and ordered a fresh selection. The Supreme Court held that the combined cadre was valid, the university correctly applied the state’s 20% women reservation, and that one of the three vacancies could be horizontally reserved for a woman, making Dr. Jain’s appointment lawful. Consequently, the Court set aside the High Court’s order, dismissed Dr. Prasad’s appeal, and allowed the cross‑appeal in favour of Dr. Jain.

Issues considered

The validity of the combined cadre of Associate Professor and Assistant Professor for the purpose of reservation.
Whether horizontal reservation for women applies when there are three vacancies in the combined cadre.
Whether the appointment of Dr. Madhu Jain as Assistant Professor violates any statutory or constitutional provision.
Whether the High Court erred in setting aside the appointment and directing a fresh selection.

Subjects

reservationhorizontal reservationcombined cadreuniversity appointmentsservice lawwomen reservationflexible cadre structureSupreme Court

Judgment

[2008) 6 S.C.R. 1096

A SHIV PRASAD
v.
GOVERNMENT OF INDIA & ORS.
(Civil Appeal No. 2979 of 2008)
APRIL 25, 2008
B
(C.K. THAKKER AND D.K. JAIN, JJ . )

Service Law:
Roorkee University Act, 1947:
c
Appointment of Associate Professor/Assistant Professor
in University - Incumbent allegedly recommended for
selection as Associate Professor but not offered appointment,
but respondent No.4, an ineligible woman candidate, was
appointed as Assistant Professor - Challenge to - High Court
D
set aside the appointment of respondent No. 4 - Correctness
of - Held: Incorrect - Cadre of Associate Professors and ~
Assistant Professors is combined one - Since legality of
combined cadre not challenged, it could be treated as legal -
In terms of reservation policy of the State Government, as
E
accepted by the University, there exist reservation for woman
candidate - Reservation of woman candidate cannot be held
invalid - Selection Committee was, therefore, enjoined to
consider the selection in terms of reservation policy treating
the cadre as combined cadre - Under the circumstances,
F selection of respondent No. 4, a woman candidate, as Assistant
Professor cannot be held illegal/unlawful. ..
Appointment against a single post - Applicability of rule
of reservation - Held: Not applicable - However, in the instant
case, there were three posts to be filled in, allowing 20%
G
reservation for woman candidates, one post, therefore, could
to be reserved horizontally for a woman candidate.
It is the case of the appellant that pursuant to the ...,.,
advertisement issued by the respondent-University for
H 1096
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1097

filling up the posts of Associate Professor/Assistant A
Prof~ssor, he had applied for appointment for the post of
Associate Professor and his name was recommended for
appointment as Associate Professor; that respondent No.
4, a woman candidate who was not recommended by the
Selection Board, but was declared selected and being B
appointed as Assistant Professor in the Department of
Mathematics. Against her appointment, he had made
representations to the University, but there was no
favourable reply. He, therefore, filed a writ petition, which
was allowed by the Division Bench of the High Court C
setting aside the appointment of respondent No.4 and
directing the University to re-advertise the post and to
conduct the selection process afresh. Though, the
selection and appointment of respondent No. 4 to the post
of Assistant Professor had been set aside, no effective
0
relief was granted in favour of the appellant. Hence, the
present appeal. Aggrieved against the order of the High
Court setting aside her appointment, respondent No.4 has
filed a cross appeal.
Appellant contended that there was no merit list E
prepared for the Combined Cadre of Associate/Assistant
Professor, and horizontal reservation could not be applied
thereto; even otherwise, the rule of reservation does not
apply to a single post; that respondent No. 4 was an
outside candidate and she had wrongly been selected F
under Flexible Cadre Structure (FCS) as Assistant
Professor; that the High Court wrongly interpreted and
applied a decision of this Court in the case of Swati Gupta
vs. State of Uttar Pradesh, (1995) 2 SCC 560 : JT 1995 (2)
SC 438 and refused relief to him; and that once the High G
Court upheld his contention that the University was not
right in appointing respondent No. 4 as Assistant
•-1 Professor, it ought to have allowed the petition in its
entirety by directing the authorities to appoint him against
the post of Associate Professor. To that extent, the order
H
1098 SUPREME COURT REPORTS [2008] 6 S.C.R

A passed by the High Court deserves to be set aside by
granting consequential relief to him.
Respondent No. 4 submitted that the High Court has
committed an error of law in allowing the petition filed by
the appellant and in quashing her appointment; that
11 admittedly, the cadre of Associate Professor and Assistant
Professor is combined one and even the advertisement
was issued showing that one post was reserved for
woman candidate; that according to the policy of U.P.
Government, there should be 20% reservation for 'women
C candidates' and the said policy had been followed by the
University; and that since there were three posts in the
'Combined Cadre', one was reserved for a woman
candidate. Respondent No. 4 was a woman candidate.
Thus, the University was fully justified in selecting her
D name for the post of Assistant Professor and in giving
the appointment; and that her appointment may be
restored by modifying the direction of the High Court to
re-advertise the post and to undertake selection process
afresh.
E Respondent-University submitted that there was no
challenge to the Combined Cadre of Associate Professor/
Assistant Professor; that once it is conceded that
appointments were to be made against the Combined
Cadre, the cases will have to be considered on that basis;
F that one vacancy in the Combined Cadre of Associate
Professor/Assistant Professor was reserved for women
candidate and since respondent No. 4 was available, she
was rightly selected, recommended and appointed as
Assistant Professor; and that the High Court failed to
G appreciate in its proper perspective the concept of
'Combined Cadre' and wrongly allowed the petition, set
aside the appointment of respondent No. 4 and directed
re-advertisement and fresh process.
Dismissing the appeal and allowing the cross-appeal,
H
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1099

j_
the Court A
HELD: 1. The High Court was in error in allowing the
petition filed by the writ petitioner and in setting aside the
•
appointment of respondent No. 4 as Assistant Professor.
(Para - 9) [1106-A]
8
2.1 It is clear that reservation policy of the State
J Government has been accepted by the University and has
been enforced in making various appointments. (Para -
10) [1106-8, C]
2.2 Even the advertisement in question, pursuant to c
which applications were made by the appellant as also
by respondent No. 4 specifically states that the
reservation policy of the Government will apply in filling
up of posts. The High Court, in the circumstances, ought
to have considered and decided the question proceeding D
-( on the basis that there was reservation for women. (Para
-10) [1106-0, E]
2.3 It is clear that the reservation for women
candidates cannot be held invalid or in excess of
E
permissible quota. In fact, reservation policy itself makes
this position clear. (Para - 29) [1114-C, D]
Ani/ Kumar Gupta & Ors. vs. State of UP & Ors., (1995)
5 SCC 173: JT 1995 (5) SC 505 and Mahesh Gupta & Ors.
vs. Yashwank Kumar Ahirwar & Ors., (2007) 8 SCC 621 : JT F
2007 (10) SC 556 - relied on.
2.4 In the affidavit-in-reply by the University, it was
clarified that three posts in the Flexible Cadre Structure
(1 General : unreserved + 2 Schedule Caste) were vacant
under the heading 'Associate Professor/ Assistant G
Professor'. Since there was 20% reservation for women
and three posts were to be filled in, it came to 0.6% i.e.
~-'"f-
more than 0.5% and as such one post had to be
horizontally reserved for a woman candidate. As
respondent No. 4 was found eligible and qualified, she H
1100 SUPREME COURT REPORTS [2008] 6 S.C.R.

A was selected and recommended for appointment as
Assistant Professor and no grievance can be raised
against such lawful action of the University. (Para - 30)
[1114-E-G]
3.1 It is clear from the record that the appellant was
B selected and recommended for appointment as Associate
Professor since he was already working as Assistant
Professor (feeder cadre), was eligible to be appointed as
Associate Professor and was found fit by the Selection
Committee. But it also cannot be ignored or overlooked
c that respondent No 4 had also applied to be appointed as
Assistant Professor. (Paras - 11 & 12) [1106-F, G]
3.2 The cadre of Associate Professor and Assistant
Professor is combined one. An advertisement was issued
on that basis. Applications were invited and all candidates
D applied on that footing. Legality of 'Combined Cadre' was
not challenged in the petition. The Court is, therefore,
required to consider the case and decide treating •
'Combined Cadre' as legal and valid. (Para - 10)
[1106-A,B]
E 3.3 It is no doubt true that in the High Court, at one
stage, it was contended by the University that respondent
No. 4 was found more meritorious and was preferred to
the writ-petitioner though it was neither the assertion of
the University at the initial stage nor in the affidavit-in-reply
F filed in the High Court. (Para - 31) [1114-G; 1115-A]
3.4 In view of Combined Cadre of Associate/Assistant
Professor, the Selection Committee was enjoined to
consider the matter on the policy of the Government
keeping in view reservation for women. Hence, even
G though the appellant was found fit, selected and
recommended by the Committee for the post of Associate
Professor, in the light of the reservation policy, availability
of respondent No. 4 and her selection to the post of ~ .
Assistant Professor, the action of the University in
H appointing her to that post and not appointing the
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1101
[C.K. THAKKER, J.]
'
appellant as Associate Professor cannot be held illegal, A
""' unlawful or contrary to law and could not have been set
aside by the High Court. (Para -14) [1107-F, G, H; 1108-A]
3.5 It is clear that the action of the University had
neither violated any provision of law nor was inconsistent
with the law laid down in the case of Indra Sawheny vs. 8
Union of India 1992 Supp.(3) SCC 217. (Para - 20) [1111-A]
Indra Sawhney vs. Union of India, 1992 Supp (3) SCC
217: JT 1992 (6) SC 273 (Indra Sawheny (/)) - relied on.

i 4. On the facts and in the circumstances of the case, c
the selection, recommendation and appointment of
respondent No.4 as Assistant Professor is legal, valid and
in accordance with law and could not have been set aside
by the High Court. The order of the High Court to that
extent is set aside upholding the action of the University. D
(Para -34) [1115-E, F]
~
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2979 of 2008.
From the Order dated 18.9.2003 of the High Court of E
Uttranchal at Nainital in C.W.P. No. 802 (S/B) of 2001.
WITH
Civil Appeal No. 2989 of 2008.
V. Shekhar, J.N. Dubey, R.P. Wadhwani, S. Ganesh, F
.. Pradeep K. Dubey, Zangpo Sherpa, Abhigya, S.R. Selia, Ashok
K. Srivastava, Saurabh Trivedi, lndrajeet Das, Anurag Dubey,
Anu Sawheney and S.K. Daivakar for the Appearing parties.
The Judgment of the Court was delivered by G
C.K. THAKKER, J. 1. Leave granted.
j j 2. Both these appeals have been instituted by the
appellants being aggrieved and dissatisfied with the judgment
and order passed by the High Court of Uttranchal (now
H
1102 SUPREME COURT REPORTS (2008] 6 S.C.R

A Uttrakahand) on September 18, 2003 in Writ Petition No. 802
(S/B) of 2001.
3. Shortly stated the facts of the case are that on August
10, 2000, Roorkee University issued an advertisement for filling
up various vacancies in different faculties. The controversy in
B present appeals relates to the vacancy position in the
Department of Mathematics. As observed in the impugned
judgment of the High Court, there were six posts of Professors
(unreserved) and three posts of Associate/Assistant Professors.
Out of three posts, two were reserved for Scheduled Caste
C candidates while one was for General Category: Unreserved
(UR). They were to be filled under Flexible Cadre Structure (FCS)
in accordance with reserve roaster notified by the Government
of Uttar Pradesh under whose control the University was
functioning at the relevant time. Appellants in both the appeals
0 applied in March, 2001. Interviews were conducted on March
20, 2001. Selection Committee met on the next day, i.e. March
21, 2001. It is the case of the writ petitioner that he was selected
for the post of Associate Professor. According to him,
respondent No. 4 (Dr. Madhu Jain) was not found eligible and
E was neither selected nor recommended. The writ petitioner,
however, did not receive an appointment letter for quite some
time. On the contrary, he came to know that respondent No. 4
was intimated by the University that she was selected and being
appointed as Assistant Professor in the Department of
F Mathematics. The writ petitioner made representations. Since
there was no favourable reply, he was constrained to approach
the High Court by filing a writ petition. The Division Bench of the
High Court by the order impugned in the present appeals,
allQwed his petition, set aside the appointment of respondent
G No. 4 but directed the University to re-advertise the post and to
conductthe selection process afresh. Consequence of the order
passed by the High Court was that the writ petitionetsucceeded
and selection and appointment of respondent No. 4 to the post
of Assistant Professor in Mathematics had been set aside, but
no effective relief had been granted in favour of writ petitioner.
H
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1103
'. ~ [C.K. THAKKER, J.]

The grievance of the writ petitioner in the present appeal is that A
though he was eligible, qualified, found fit and recommended
for appointment to the post of Associate Professor, he was not
appointed. The High Court, no doubt, allowed his writ petition
but it was wrong in directing re-advertisement of the post and to
conduct selection process afresh. The complaint of respondent B
J No. 4-appellant in the cognate appeal, on the other hand, is that
· oh the facts and in the circumstances of the case, she was rightly
selected, recommended and appointed as Assistant Professor
in Mathematics and the High Court was not justified in setting
aside her appointment. The action of the University in appointing c
her was legal and valid and ought not to have been disturbed by
the High Court.

4. On January 6, 2004, notice was issued by this Court in
Special Leave Petition instituted by the writ petitioner. The
parties were directed to exchange affidavits. Meanwhile, D
i
respondent No. 4 also instituted Special Leave Petition on
January 29, 2004. In that matter also notice was issued. Both
the matters were then ordered to be placed for final hearing on
a non-miscellaneous day and that is how the matters have been
placed before us. E
5. We have heard the learned counsel for the parties.

6. The learned counsel for the appellant-writ petitioner
contended that the writ petitioner was working as Assistant
~ Professor. Pursuant to an advertisement issued by the University F
for filling up posts of Associate/ Assistant Professor (Combined
Cadre), the writ petitioner applied and got himself selected and
was recommended for appointment to the post of Associate
Professor. It was also submitted that there was no merit list for
the Combined Cadre of Associate/Assistant Professor, and
G

. ~
horizontal reservation could not be applied. Moreover, the post
of AssoCiate Professor is a promotional post from the post of
Assistant Professor which the writ petitioner was holding. In other
words, the post of Assistant Professor is the feeder post from
which a person may be promoted to the higher post of Associate
H
1104 SUPREME COURT REPORTS [2008] 6 S.C.R.

A Professor. Since there was only one post of Associate Professor,
even otherwise, the rule of reservation does not apply to a single
post. In the advertisement also, the post was shown as UR
(unreserved). Respondent No. 4 was an outside candidate, i.e.
she was from Agra University and she had wrongly been
B selected under FCS [Flexible Cadre Structure] as Assistant
Professor in the Combined Cadre of Associate/Assistant
Professor. It was also submitted that the High Court wrongly
interpreted and applied a decision of this Court in Swati Gupta
v. State of Uttar Pradesh, (1995) 2 SCC 560: JT 1995 (2) SC
C 438 and refused relief to the writ petitioner. Once the High Court
upheld his contention that the University was not right in
· appointing respondent No. 4 as Assistant Professor, it ought to
have allowed the petition in its entirety by directing the authorities
to appoint writ petitioner to the post of Associate Professor. To
that extent, therefore, the order passed by the High Court
0
deserves to be set aside by granting consequential relief to the
writ petitioner.
7. The learned counsel for respondent No. 4 who has also
approached this Court against the order setting aside her
E appointment, contended that the High Court has committed an
error of law in allowing the petition filed by the writ petitioner
and in quashing her appointment. It was submitted that
admittedly, the cadre of Associate Professor and Assistant
Professor is combined and even the advertisement was issued
F showing both the cadres as 'combined' one. One post was
reserved in women category. According to the policy of the U .P.
Government, there should be 20% reservation for 'women
candidates'. The said policy had been accepted and
implemented by the University. Since there were three posts in
G the 'Combined Cadre', one was reserved for a woman
candidate. Respondent No. 4 was a woman candidate so far
as Assistant Professor (Mathematics) was concerned. In view
of the said fact, the University was fully justified in selecting her,
recommending her name for Assistant Professor and in giving
H appointment. The writ petitioner could not have made grievance
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1105
[C.K. THAKKER, J.]
, )l
against her appointment and the High Court was not right in A
setting aside the appointment of respondent No. 4. She had,
therefore, prayed that the writ petition filed by the writ petitioner
may be dismissed and her appointment may be restored by
modifying the direction of the High Court to re-advertise the post
and to undertake selection process afresh. It was also urged B :tJ
that the writ petitioner had made prayer only to .quash
appointment of respondent No. 4 in the writ petition and no relief
was sought seeking his appointment to the post of Associate
Professor. Therefore, even otherwise, he cannot be ordered to
be appointed as Associate Professor and his appeal is liable
to be dismissed.
c
8. The learned counsel for the University supported the
action taken by the University. According to him, there was no
challenge to the Combined Cadre of Associate Professor/
Assistant Professor. The c"ontention of the writ petitioner that he D
was already holding the post of Assistant Professor and was
seeking selection and appointment to the higher and
promotional post of Associate Professor was wholly irrelevant.
Once it is conceded that appointments were to be made to
Combined Cadre, the cases will have to be considered on that E
basis. In the instant case, one vacancy in the Combined Cadre
of Associate Professor/Assistant Professor was reserved for
women candidate and since respondent No. 4 was available,
she was rightly selected, recommended and appointed as
Assistant Professor and the writ petitioner could not have F
~ challenged that action. The counsel also stated that respondent
No. 4 was selected as Assistant Professor. The High Court
unfortunately failed to appreciate in its proper perspective the
concept of 'Combined Cadre' and wrongly allowed the petition,
set aside the appointment of respondent No. 4 and directed re-
G
advertisement and fresh process. To that extent, therefore, the
High Court was in error. He, therefore, submitted that the appeal
.. -t filed by the writ petitioner is liable to be dismissed and the appeal
of respondent No. 4 deserves to be allowed.

9. Having considered the rival contentions of the parties, H
, I
1106 SUPREME COURT REPORTS [2008) 6 S.C.R.

A in our opinion, the High Court was in error in allowing the petition
filed by the writ petitioner and in setting aside the appointment
of respondent No. 4 as Assistant Professor.
10. It is no more in dispute that the cadre of Associate
Professor and Assistant Professor is combined one. An
B advertisement was issued on that basis. Applications were
invited and all candidates applied on that footing. Legality of
'Combined Cadre' was not challenged in the petition. The Court
,is, therefore, required to consider the case and decide treating
'Combined Cadre' as legal and valid. It is also clear that
C reservation policy of the State Government has been accepted
by the University and has been enforced in making various
appointments. This is also clear from the letter, dated February
· 26, 1999 by the Secretary, Government of U.P. to various
authorities wherein it was expressly stated that a decision of
D 20% reservation for women in direct appointment had been
taken by the Government. Moreover, even the advertisement in ~
question, dated August 10, 2000, pursuant to which applications
were made by the writ-petitioner as also by respondent No. 4
refers to the advertisement and specifically states that the
E reservation policy of the Government will apply in filling up of
posts. The High Court, in the circumstances, ought to have
considered and decided the question proceeding on the basis
that there was reservation of 20% for women.
11. Now, from the record, it is clear that the writ-petitioner
F was selected and recommended for the appointment as
Associate Professor since he was already working as Assistant
Professor (feeder cadre), was eligible to be appointed as
Associate Professor and was found fit by the Selection
Committee.
G
12. But it also cannot be ignored or overlooked that
respondent No 4 had also applied to be appointed as Assistant
Professor. The learned counsel for the writ petitioner contended
that respondent No. 4 was not eligible to be considered for the
H post of Associate Professor inasmuch as she was an 'outsider',
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1107
[C.K. THAKKER, J.]
~ j
i.e. not from the University of Roorkee but from the University of A
Agra an.d that she was not eligible and qualified to be selected
and appointed as Associate Professor since she was not
working as Assistant Professorwhich is the feeder cadre.

13. The learned counsel is right to that extent. The High
Court, upholding the contention of the writ petitioner, allowed B
. }. his petitiqn and set aside the appointment of respondent No. 4.
It is, however, important to note that the cadre is a Combined
Cadre of Associate Professor as well as Assistant Professor.
An advertisement was also issued on the basis of Combined
Cadre. The said action was never challenged by the writ- c
petitioner. The reservation policy of the Government of U .P. was
applied by the University which is also not in dispute. Even the
advertisement refers to such policy. In the circumstances, the
only question is whether appointment of respondent No. 4 to
the post of Assistant Professor could legally have been made D
i by the University.
14 ..In our considered opinion, in the light of the above facts
and circumstances, namely, the cadre of Associate Professor
and Assistan.t Professor is a Combined Cadre, the policy of
reservation of U.P. Government provides for 20% reservation E
for women, the said policy has been accepted by the University;
that even the advertisement referred to that policy, the
advertisement also provided for selection and appointment on
the Combined Cadre of Associate/ Assistant Professor, that
~ respondent No. 4 was a woman candidate for the post of F
Assistant Professor and was duly considered, selected and
recommended for the post of Assistant Professor, selection and
recommendation of the writ petitioner as Associate Professor,
in our considered opinion, was irrelevant. In view of Combined
Cadre of Associate/Assistant Professor, the Selection G
Committee was e11joined to consider the matter on the policy of
' + the Government keeping in view reservation for women. Hence,
even though the writ petiti0ner was fouhd fit, selected and
recommended by the Committee for the post of Associate
Professor, in the light of the reservation policy, availability of H
1108 SUPREME COURT REPORTS [2008] 6 S.C.R.
~ .(

A respondent No. 4 and her selection to the post of Assistant
Professor, the action of the University in appointing her to that
post and not appointing the writ petitioner as Associate
Professor cannot be held illegal, unlawful or contrary to law and
could not have been set aside by the High Court.
B 15. It was contended by the learned counsel for the writ-
{
petitioner in the High Court as also before us that there was
only one post of Associate/Assistant Professor and as per
settled principle of law, the rule of reservation does not apply to
'Single Cadre Post'. The counsel, in this connection, relied upon
c a decision of this Court in Post Graduate Institute of Medical
Education & Research, Chandigarh v. Faculty Association &
Ors., (1998) 4 sec 1 : JT 1998 (3) sc 223.
16. So far as the proposition of law is concerned, there
can be no two opinions about it. It was, however, the case of the
D
respondents that this was not a case of 'Single Cadre Post'. In
this connection, the attention of this Court was invited to an
affidavit filed by the Registrar of the University clarifying the
position.

E 17. The deponent while dealing with 'preliminary
submissions', in para (ii) stated;
The post of Associate Professor and Asstt. Professor are
in the Joint Cadre under the 'Flexible Cadre Structure'
and as such the number of these posts is to be jointly
F counted for the purpose of women's reservation in the
advertisement issued by the University, a copy of which is
annexed asAnnexure P-1 to the S.L.P. one post in General
Category and two posts for S.C. category (total three
posts) have been shown as vacant under the heading of
G 'Associate Professor/ Asstt. Professor' and when the
reservation of 20% for the women was calculated on three
,
vacancies, the figure came to 0.6 meaning thereby, that -t
one post had to be horizontally reserved for a women
candidate who may be found eligible for selection. Dr.
H Madhu Jain, a selected woman candidate, was therefore,
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1109
[C.K. THAKKER, J.)
~ j
correctly given the appointment of Asstt. Professor. This A
offer had also been accepted by Dr. Madhu Jain.
It is significant to bring it to the kind notice of this Hon'ble
Court that had Dr. Madhu Jain not accepted the offer of
appointment to the post of Asstt. Professor, the other
woman candidate on the combined panel, namely, Dr. B
(Ms.) Pratibha, would have been offered appointment.
j
Thus it is submitted that the positions of Associate
Professor and Asstt. Professor were both in the 'Joint
Cadre' in the University under the 'Flexible Cadre c
Structure', approved for the University by the U.P. Govt.
and according to the policy of the U.P. Govt. (which was
followed in the University), 20 percent of all the advertised
posts in a Deptt. Other than Professors, were to. be
reserved "Horizontally" for the women candidates.
D
The University had implemented the reservation policy of
the Govt. for reservation of the women in services in letter
and spirit, it was not possible to offer an appointment to
the Petitioner first, when women candidates were on the .
panel and according to the provision for horizontal E
reservation, they were entitled in turn, to get the
appointment first.
18. The University, through its Registrar, further stated in·
the counter that the University had considered the provisions of
the Roorkee University Act, 1947, the policy of reservation F
~
framed by the Government of U.P. and also the direction issued
and law laid down by this Court in Indra Sawhney v. Union of
India, 1992 Supp (3) SCC 217 : JT 1992 (6) SC 273 (Indra
Sahney I) that the total reservation of vacancies of all categories
should not exceed 50% of the total vacancies. G

19. The University, then stated;
If we apply the aforesaid mandate to the facts of the present
case in the Department of Mathematics reservation roster
register worked like this: H
1110 SUPREME COURT REPORTS [2008] 6 S.C.R.

A. """;""
A (a) Upto the year 1999 and immediately before the
impugned advertisement dated 10.8.2000 (R-3) the
University had utilized 10 roster points for the
Department of Mathematics. Out of these 10 roster
points while 02 vacancies were to go to SCs, 03
B were to go to OBCs and 05 unreserved. 05 vacancies
for OBCs and 05 unreserved had been filled up, while
02 vacancies reserved for SCs remained unfilled for
want of suitable candidates. This position emerged
out after conducting 02 special recruitment drives in
c addition to normal recruitment between 1995 to 1999.
(b) The 11th Roster point meant for a Scheduled Caste
was filled up during this recruitment. The 12th roster
point (for unreserved category) and the 13th (for OBC)
were separately advertised for the Master of
D Computer Applications (MCA Programme) an inter
disciplinary programme, being run by the Department
of Mathematics as the Administrative Department.
(c) Came then the 14th roster point meant for an
unreserved candidate, on which Dr. (Mrs.) Madhu
E Jain was appointed.
(d) The net result thus is that out of the 14 roster points
so far utilized, 2 were meant for the MCA Programme,
while remaining 12 had the under-mentioned
F distribution:-
SC 3 (2 unfilled)
OBC 3 (filled)
Unreserved 6 (filled)
G It is, therefore, crystal clear that out of the 12 roster points
utilised till date, 6 went to the unreserved candidates and
6 to the reserved candidates of different categories,
thereby assiduously following the 50% mandate of the
Hon'ble Supreme Court expounded in Indira Sawheny's
H case supra.
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1111
[C.K. THAKKER, J.]
)
20. It is thus clear that the action of the University had neither A
violated any provision of law nor was inconsistent with the law
laid down in Indra Sawheny I.
21. The next question then is : How can this woman-
reservation be implemented and enforced? Whether such
reservation will violate Indra Sawheny (I) and exceed 50% B
reservation which is maximum? Our reply is in the negative. Let.
us consider the issue.

22. In Indra Sawheny (/},Justice Jeevan Reddy dealt with
this aspect. His Lordship observed that there are two types of c
reservations; (i) vertical reservations; and (ii) horizontal
reservations. They must be so applied as not to exceed the
percentage of reservations which is permissible under law. This
can be done by 'interlocking reservations'.
23. His Lordship proceeded to state; D

There are two types of reservations, which may, for the
sake of convenience, be referred to as 'vertical
reservations' and 'horizontal reservations'. The
reservations in favour of Scheduled Castes, Scheduled
Tribes and other backward classes [under Article 16(4)]
E
may be called vertical reservations whereas reservations
• in favour of physically handicapped [under clause (1) of
Article 16] can be referred to as horizontal reservations.
Horizontal reservations cut across the vertical reservations
- what is called interlocking reservations. To be more F
precise, suppose 3% of the vacancies are reserved in
favour of physically handicapped persons; this would be
a reservation relatable to clause (1) of Article 16. The
persons selected against this quota will be placed in
the appropriate category; if he belongs to SC category G
he wilf be placed in that quota by making necessary
adjustments; similarly, if he belongs to open
~ competition (OC) category, he wilf be placed in that
category by making necessary adjustments. Even after
providing for these horizontal reservations, the percentage H
1112 SUPREME COURT REPORTS [2008] 6 S.C.R.

A 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 not to continue that procedure.
(emphasis supplied)
B 24. A similar question came up for consideration in Swati
Gupta. There, the petitioner appeared in the Combined Pre-
Medical Test (CPMT) held by the State. She was not selected.
She challenged a notification of the State Government on the
ground that the reservation was 65% which exceeded 50% and
C was thus violative of the constitutional guarantee under Articles
14, 16, 19 and 21 of the Constitution as also the ratio laid down
in Indra Sawhney (/).The Government of U.P., however, issued
another notification clarifying its stand on reservations.
25. In the amended notification, it was clarified that the
0
reservations for the candidates belonging to other categories,
such as, dependents of freedom-fighters, sons/ daughters of
deceased/disabled soldiers, physically handicapped
candidates, etc. would be 'horizontal' and the candidates
selected in those categories would be adjusted in the categories
E to which they belong, i.e. either reserved category of Schedule
Castes (SC), Schedule Tribes (ST), Other Backward Class
(OBC) or Open Category (OC) in 'vertical' reservation and it
would not violate constitutional guarantee.
F 26. The Court considered Indra Sawhney (/), applied it to
the case on hand and held that the submission of the State was
well founded and the contention of the petitioner that the
reservation violated constitutional guarantee of 50% was not
well-founded.
G 27. The Court stated;
The vertical reservation is now 50% for general category
and 50% for Scheduled Castes, Scheduled Tribes and
Backward Classes. Reservation of 15% for various
categories mentioned in the earlier circular which reduced
H
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1113
[C.K. THAKKER, J.]

the general category to 35% due to vertical reservation A
has now been made horizontal in the amended circular
extending it to all seats. The reservation is no more in
general category. The amended circular divides all the
seats in CPMT into two categories- one, general and
other reserved. Both have been allocated 50%. Para 2 of B
the circular explains that candidates who are selected
on merit and happen to be of the category mentioned
in para 1 would be liable to be adjusted in general or
reserved category depending on to which category
they belong, such reservation is not contrary to what c
was said by this Court in Indra Sawhney.
(emphasis supplied)
28. A similar question was raised in Anil Kumar Gupta &
Ors. V State of UP & Ors., (1995) 5 SCC 173: JT 1995 (5)
D
--1 SC 505. Referring to Indra Sawhney (/), and Swati Gupta, the
Court observed;
Now, coming to the correctness of the procedure
prescribed by the revised notification for filling up the seats,
it was wrong to direct the fifteen per cent special E
reservation seats to be filled up first and then take up the
OC (merit) quota (followed by filling of OBC, SC and ST
quotas). The proper and correct course is to first fill up the
OC quota (50%) on the basis of merit; then fill up each of
the social reservation quotas, i.e., SC, ST and BC; the F
~
third step would be to find out how many candidates
belonging to special reservations have been selected on
the above basis. If the quota fixed for horizontal reservations
is already satisfied - in case it is an overall horizontal
reservation - no further question arises. But if it is not so
G
satisfied, the requisite number of special reservation
candidates shall have to be taken and adjusted/
. ~-
accommodated against their respective social reservation
categories by deleting the corresponding number of
candidates therefrom. (If, however, it is a case of
H
1114 SUPREME COURT REPORTS [2008] 6 S.C.R.

A compartmentalised horizontal reservation, then the
process of verification and adjustmenU accommodation
as stated above should be applied separately to each of
the vertical reservations. In such a case, the reservation of
fifteen per cent in favour of special categories, overall,
B may be satisfied or may not be satisfied.) Because the
revised notification provided for a different method of filling
the seats, it has contributed partly to the unfortunate
situation where the entire special reservation quota has
been allocated and adjusted almost exclusively against
c the OC quota.
[see also Mahesh Gupta & Ors. V Yashwank Kumar
Ahirwar & Ors., (2007) 8 SCC 621 : JT 2007 (10) SC 556].
29. It is thus clear that the reservation for women candidates
cannot be held invalid or in excess of permissible quota. In fact,
0
reservation policy itself makes this position clear. A letter, dated
February 26, 1999 referred to above and annexed as Annexure
P1 is explicitly clear. Para 2 reads thus;
Reservation will be of Horizontal nature i.e. if any Woman
E candidate selected on the basis of reservation on any
category then she will be fixed of the said category.
30. In the affidavit-in-reply by the University, it was clarified
that three posts in the Flexible Cadre Structure (1 General :
unreserved+ 2 Schedule Caste) were vacant under the heading
F 'Associate Professor/ Assistant Professor'. Since there was
20% reservation for women and three posts were to be filled in,
it came to 0.6% i.e. more than 0.5% and as such one post had
to be horizontally reserved for a woman candidate. As
respondent No. 4 was found eligible and qualified, she was
G selected and recommended for appointment as Assistant
Professor and no grievance can be raised against such lawful
action of the University.
31. It is no doubt true that in the High Court, at one stage,
H it was contended by the University that respondent No. 4 was
SHIV PRASAD v. GOVERNMENT OF INDIA & ORS. 1115
[C.K. THAKKER, J.]

found more meritorious and was preferred to the writ-petitioner A
though it was neither the assertion of the University at the initial
stage nor in the affidavit-in-reply filed
.
in the High Court.
'

32. The learned counsel for the University stated that the
cases of the candidates, i.e. writ-petitioner and respondent No.
4 were totally different and distinct. Case of writ-petitioner was 8
considered for ttie post of Associate Professor whereas the
. case of respondent No. 4 was considered for the post of
Assistant Professor. It was only because there was Combined
Cadre of Associate/Assistant Professor .that only one of them
· could be appointed. And in view of horizontal reservation, it was C
respondent No. 4 who could be selected and recommended
for appointment as Assistant Professor and writ-petitioner had
no occasion to niake complaint against such appointment. The
post was of Open Category (OG), Le: General and respondent
No:· 4 was accommodated on that post on Open Category in D
· Women Reservation Quota.

33. For completion of record, it may be stated that in 2005,
.·writ-petitioner (Dr. Shiv Prasad) was selected and ha.s joined
as Associate Professor from February 14, 2006 (A.N}
E
.. · .. 34. For the foregoing ~easons, .in our view, the appeal filed
by Dr. Shiv Prasad (Petitioner of Writ Petition No, 802 (S/B) of
2001) deserves to be dismissed and. is hereby-Oismissed ,The
appeal filed by Dr. (Mrs.) M~dhu Jain (respondent No. 4 in Writ
Petition No. 802 (S/B) of 2001\ deserved to_ be allowed and is F
accordingly allowed. Her selection, ·recommendation and
appointment as Assistant Professor is held legal, valid and in
accordance with law and could not have 9een set aside by the
High Court: Th,e order of the High Court to that extent is set
aside upholding the action of the University. On the facts and in G
the circumstances ofthe case, however, al!"the parties. are
directed to bear their· own costs, · '· · · ·
'; ;'

S.K.S. ·' · · Civjl Appeal' No. 2979 of 2008 dismissed. and
··Civil Appeal No. 2989 of 2008 allowed.
H