Vertical and Horizontal Reservations



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.


 --------------------------------------------------------------------------------------------------------------------------


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).


[1] Supreme Court of India
Anil Kumar Gupta, Etc vs State Of Uttar Pradesh And Ors on 28 July, 1995
Equivalent citations: 1995 SCC (5) 173, JT 1995 (5) 505
PETITIONER: ANIL KUMAR GUPTA, ETC. Vs. RESPONDENT: STATE OF UTTAR PRADESH AND ORS.

[2] 2007 ALL SCR 2425

No comments:

Post a Comment