Supreme Court in the case of Anil Kumar
Gupta, Etc Vs. State of Uttar Pradesh and ors.
[1]
ü Whether the horizontal reservations are overall
reservations or compartmentalised reservations ?
The two expressions explained thus:
“Compartmantalised
Horizontal Reservation”
“Where the
seats reserved for horizontal reservations are proportionately divided among
the vertical (social) reservations and are not inter-transferable, it would be
a case of compartmentalised reservations.”
Illustration:
“Take this very case; out of the total 746
seats, 112 seats (representing fifteen percent) should be filled by special
reservation candidates; at the same time, the social reservation in favour of
Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112
special reservation seats are also divided proportionately as between
O.C.,O.B.C.,S.C. and S.T., 30 seats would be allocated to the O.B.C. category;
in other words, thirty special category students can be accommodated in the
O.B.C. category; but say only ten special reservation candidates belonging to
O.B.C. are available, then these ten candidates will, of course, be allocated
among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C.
category (they will be available for O.B.C. candidates only) or for that
matter, to any other category; this would be so whether requisite number of
special reservation candidates (56 out of 373) are available in O.C. category
or not; the special reservation would be a water tight compartment
in each of the vertical reservation classes (O.C.,O.B.C.,S.C. and S.T.).
“Overall horizontal
reservation”
As against this,
what happens in the over-all reservation is that while allocating the
special reservation students to their respective social reservation category,
the over-all reservation in favour of special reservation categories has yet to
be honoured. This means that in the above illustration, the twenty remaining
seats would be transferred to O.C. category which means that the number of
special reservation candidates in O.C. category would be 56+20=76. Further, if
no special reservation candidate belonging to S.C. and S.T. is available then
the proportionate number of seats meant for special reservation candidates in
S.C. and S.T. also get transferred to O.C. category. The result would be that
102 special reservation candidates have to be accommodated in the O.C. category
to complete their quota of 112. The converse may also happen, which will
prejudice the candidates in the reserved categories. It is, of course, obvious
that the inter se quota between O.C., O.B.C., S.C. and S.T. will not be
altered.”
ü The Court observed that the government should be conscious
of the distinction between overall horizontal reservation
and compartmentalised horizontal reservation.
ü The Court gave guidance for future.
“It would
have been better - and the respondents may note this for their future guidance
- that while providing horizontal reservations, they should specify
whether the horizontal reservation is a compartmental one or an overall one.”
ü To avoid complications and intractable problems the court
said:
“We are of
the opinion that in the interest of avoiding any complications and intractable
problems, it would be better that in future the horizontal
reservations are comparmentalised in the sense explained above. In other
words, the notification inviting applications should itself state not only the
percentage of horizontal reservation(s) but should also specify the number of
seats reserved for them in each of the social reservation categories, viz.,
S.T., S.C., O.B.C. and O.C. If this is not done there is always a possibility
of one or the other vertical reservation category suffering prejudice as has
happened in this case.”
ü What should be the correct procedure while working
out reservation?
The wrong way:
To direct the
fifteen percent special reservation seats to be filled up first and then take
up the O.C. (merit) quota (followed by filling of O.B.C., S.C. and S.T.
quotas).
The proper and
correct course is:
v first : fill up the
O.C.(Open Competition) quota (50%) on the basis of merit:
v then : fill up each
of the social reservation quotas, i.e., S.C., S.T. and B.C;
v the third
step: find out how many candidates belonging to special reservations
have been selected on the above basis.
v Fourth step:
§ in case it is an
over-all horizontal reservation
·
If the quota fixed for horizontal reservations is
already satisfied, no further question arises.
·
But if it (i.e. the quota fixed for horizontal
reservations) is not so 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.
§ In case of compartmentalised
horizontal reservation,
·
The process of verification and adjustment / accommodation
as stated above should be applied separately to each of the vertical
reservations. In such a case, the reservation of fifteen percent in favour of
special categories, overall, may be satisfied or may not be satisfied.
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RAJESH KUMAR DARIA VS. RAJASTHAN PUBLIC
SERVICE COMMISSION & ORS.[2]
Nature of horizontal reservation and the
manner of its application
It will he advantageous to refer to the
nature of horizontal reservation and the manner of its application. In Indra
Sawhney Vs.Union of India (1992 Supp (3) SCC 217), the principle of
horizontal reservation was explained thus (para 812) :
"..... all reservations are not of
the same nature. There are two types of reservations, which may, for the sake
of convenience, be referred to as 'vertical reservations' and 'horizontal
reservations.' The reservations in favour of Scheduled Castes,Scheduled Tribes
and Other Backward Classes ((under Article 16(4)) may be calledvertical
reservations whereas reservations in favour of physically handicapped(under
Cl.(1) of Art.16) can be referred to as horizontal reservations.
Horizontalreservations 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
reservation relatable to Cl.(1) of Art.16. The persons selected against the
quota 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 reservations, the percentageor reservations in favour of backward
class of citizens remains - and should remain - the same:"
The difference between the nature of
vertical reservation and horizontal reservation.
Social reservations in favour of SC, ST
and OBC under Art.16(4) are 'vertical reservations.' Special reservations in
favour of physically handicapped, women etc., under Art.16(1) or 15(3) are
'horizontal reservations.'
Principle
Where a vertical reservation is made in
favour of a backward classunder Art.16(4), the candidates belonging to such
backward class, may compete for non-reserved posts and if they are appointed to
the non-reserved posts on their own merit, their numbers will not be counted
against the quota reserved for the respective backward class. Therefore, if the
number of SC candidates, who by their own merit, get selected to open
competition vacancies, equals or even exceeds the percentage of posts reserved
for SC candidates, it cannot be said the reservation quota for SCs has been
filled. The entire reservation quota will be intact and available in
addition to those selected under Open Competition category. [Vide Indira
Sawhney (supra); R. K. Sabharwal Vs. State of Punjab (1995(2) SCC 745); Union
of India Vs.Virpal Singh Chauvan (1995(6)SCC 684) and Ritesh R. Sah Vs. Dr. Y.
L. Yamul (1996(3) SCC 253) ]
Exception to the principle
But the aforesaid principle applicable
to vertical (social) reservations will not apply to horizontal (special)
reservations. Where a special reservation for women is provided within the
social reservation for Scheduled Castes, the proper procedure is first to
fill up the quota for Scheduled Castes in order of merit and then find out the
number of candidates among them who belong to the special reservation group of
'Scheduled Castes-Women.' If the number of women in such list is equal to or
more than the number of special reservation quota, then there is no need for
further selection towards the special reservation quota. Only if there is any
shortfall, the requisite number of Scheduled Caste women shall have to be taken
by deleting the corresponding number of candidates from the bottom of the
list relating to Scheduled Castes. To this extent, horizontal (special)
reservation differs from vertical (social) reservation. Thus women selected on
merit within the vertical reservation quota will be counted against the
horizontal reservation for women.
Example:
If 19 posts are
reserved for SCs (of which the quota for women is four), 19 SC
candidates shall
have to be first listed in accordance with merit, from out of the
successful
eligible candidates. If such list of 19 candidates contains four SC women
candidates, then
there is no need to disturb the list by including any further SC women
candidate. O n
the other hand, if the list of 19 SC candidates contains only two
women
candidates, then the next two SC woman candidates in accordance with merit,
will have to be
included in the list and corresponding number of candidates from the
bottom of such
list shall have to be deleted, so as to ensure that the final 19 selected
SC candidates
contain four women SC candidates. (But if the list of 19 SC candidates
contains more
than four women candidates, selected on own merit, all of them will
continue in the
list and there is no question of deleting the excess women candidate on
the ground that
'SC women' have been selected in excess of the prescribed internal
quota of four).