fresh list of candidates to be called for interview from the category of Open (Female).

2. The facts in brief giving rise to the present writ petitions are as under:-

The State of Maharashtra had invited applications for the posts of Deputy Director of Health Services, Maharashtra Medical and Health Services Group A. In the advertisement , one post was shown reserved for Scheduled Castes and Scheduled Castes converted to Buddhisim, one was reserved for Nomadic Tribes (C) and two posts were shown available for open category, whereas two posts were reserved for ladies if available. The qualifications for all the posts was M.B.B.S. degree and Post-graduate degree or Post- graduate diploma. The experience requirement for open category was 20 years, for open categories ladies 7 years, for S.C. Category 18 years and 6 months and for N.T. (C ) Category 15 years in Class I post or in a post equivalent thereto of Health Administration, Medical relief or Family welfare under Government, Zilla Parishad or Local Bodies. In response to the advertisement, various candidates submitted their application forms including the petitioners herein. Insofar as the petitioner in Writ Petition No.1925 of 2014 is concerned, she had claimed reservation from S.C. as well as open female. Insofar as the petitioner in Writ Petition No.1930 of 2014 is concerned, though she belongs to O.B.C. category, she had applied against a post reserved for woman category.

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3. The respondent- Maharashtra Public Service Commission (for short MPSC) after receipt of the applications, adopted a short listing criteria. In the short listing criteria, both the petitioners were found to be eligible and called for the interviews, along with the other candidates who were short-listed. The petitioners were found to be successful and as such in the select list published by the respondent-MPSC, their names were shown as selected candidates from women category. Being aggrieved by the selection of the petitioners, one Dr. Sadhana Bhaskar Joshi, (since deceased) respondent no.2 in Writ Petition No.1925 of 2014 and respondent No.3 in Writ Petition No.1930 of 2014 filed an original application before the learned Maharashtra Administrative Tribunal, Nagpur, being O.A. No.111 of 2011 challenging the selection and appointment of the petitioners from women category. Two other original applications were also filed by the candidates challenging selection and short-listing insofar as other categories are concerned. However, in the present writ petitions we are concerned only with the issue regarding the selection of the petitioners against the post reserved for women category.

4. The learned Tribunal vide the order impugned herein found that in view of the judgment of the Apex Court in the case of

Rajesh Kumar Daria vs. Rajasthan Public Service Commission and ors. reported in (2007) 8 Supreme Court

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Cases 785, the petitioners since they belonged to S.C. and O.B.C. categories, they were not eligible for competing from the open female category. The learned Tribunal found that all the candidates who were short-listed except one Lochana Raosaheb Ghodke who has intervened in Writ Petition No.1925 of 2014 could not have been permitted to compete for the said posts and, therefore, quashed and set aside the selection and appointment of the petitioners and directed fresh short-listing and fresh interviews to be conducted for the posts reserved for women, by considering only the candidates belonging to open category. Being aggrieved thereby, the present writ petitions.

5. We have heard Mr. Mohan Sudame and Mr. A.C. Dharmadhikari, learned counsel appearing for both the petitioners, Mr. D.P. Thakre, learned Additional Government Pleader for respondent-State, Mr. N.D. Thombre, learned counsel appearing for respondent No.14 and 13 respectively in both the petitions and Mr. N.S. Warulkar, learned counsel for intervener.

6. The only question that falls for consideration in the present writ petitions is as to whether the learned Tribunal has rightly considered the law laid down by the Apex Court in the Case of Rajesh Kumar Daria (supra) or not.

7. Their Lordships of the Apex Court were considering the

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selection to the post of Munsiff-Magistrate in the Rajasthan Judicial Service made by the Rajasthan Public Service Commission. In the said case it can be seen that in the advertisement issued, the advertisement specifically provided for number of posts available for male as well as female in various categories including Open, SC, ST and OBC. It will be relevant to refer to the observations of the Apex Court in the case of Rajesh Kumar Daria (supra) in paragraph Nos. 8 and 9:-

"8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be :

"For SC : 30 posts, of which 9 posts are for women". We find that many a time this is wrongly described thus : "For SC : 21 posts for men and 9 posts for women, in all 30 posts".

Obviously, there is, and there can be, no reservation category of 'male' or 'men'.

9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are 'vertical reservations'. Special reservations in favour of physically handicapped, women etc., under Articles 16(1) or 15(3) are 'horizontal reservations'. Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved 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

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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)]. 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. Let us illustrate by an example :

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible

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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. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such 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.]

The perusal of the aforesaid observations of Their Lordships would reveal that the Apex Court has held that the reservations in favour of SC, ST and OBC under Article 16(4) were vertical reservation, whereas special reservations in favour of physically handicapped, women etc. under Articles 16(1) or 15(3) are horizontal reservations. It has been held that where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved 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. It is further held that if the number of SC candidates, who by their own merit,

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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. It has been further held that the entire reservation quota will be intact and available in addition to those selected under Open Competition category.

8. However, insofar as horizontal reservation is concerned, Their Lordships held that the said principle would not be applicable to it. It has been held that 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". It has been further held that 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. It has been further held that 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. Their Lordships held that thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.

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9. It could thus be seen that the case that fell for consideration before Their Lordships of the Apex Court was regarding the compartmentalised reservation. In the said case, reservation was provided for various categories including SC, ST, OBC and within that reservation, particular number of posts were reserved for women category. In that view of the matter, Their Lordships held that the women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.

10. However, the facts in the present case are totally different. In the present case, there is no compartmentalised reservation. Out of the six posts available, two are reserved for women. No doubt that it would have been more appropriate that in the light of the observations of Their Lordships in the case of Anil Kumar Gupta vs. State of U.P. reported in (1995) 5 Supreme Court Cases 173, the State ought to have provided reservation for women in particular vertical reservation category. However, that has not been done. In the advertisement, two posts are reserved for women category.

11. It will be appropriate to refer to the following observations of the Constitution Bench of the Apex Court in paragraph 811 in the case of Indra Sawhney .vs. Union of India and ors. reported in 1992 Supp. (3) Supreme Court Cases

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215:-

"811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

12. It could thus be seen that the Constitution Bench of the Apex Court itself has held that if a Scheduled Castes candidates get selected in the open competition on the basis of their own merit, they will not be counted against the quota reserved for Scheduled Castes and they will be treated as open competition candidates.

13. In the present case, out of the candidates who had applied against the women category, all the candidates who have been short-listed belong to the different reserved categories except the intervener in Writ Petition No. 1925 of 2014. In the interviews conducted, the petitioners were found to be the most meritorious candidates. We are, therefore, of the considered view that the facts in the present case would not be governed by the law laid down by the Apex Court in the case of Rajesh Kumar Daria (supra). We are of the view that if the view of the learned Tribunal is accepted, then it would result in a situation to exist, which is not permissible

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in view of the law laid down by the Constitution Bench of the Apex Court in the case of Indra Sawhney (supra). Merely because all the meritorious candidates in the women category belonged to the reserved categories like OBC, SC and ST, in our view cannot be a ground to deny them the benefit of their meritorious position. We find that if the view as accepted by the learned Tribunal is accepted, it will defeat constitutional mandate as explained in the judgment in the case of Indra Sawhney (supra) by the Constitution Bench of the Apex Court. A situation would exist that a male candidate belonging to a reserved category would be entitled to be selected against an open category post if he is entitled on his own merit. However, a female candidate belonging to a reserved category, even though she is much more meritorious than a candidate belonging to open category women, would not be entitled to be selected against the said post. The said situation in effect would result in permitting a discriminatory treatment to the women reserved candidates as against the male reserved candidates. We find that such a situation is not permissible under the Constitutional scheme as interpreted by the Constitution Bench of the Apex Court in the case of Indra Sawhney (supra).

14. In that view of the matter, the petitions are allowed. Clauses (c), (d), (e) [insofar as the present petitioners are concerned] and clause (f) of paragraph -22 of the order dated 03/04/2014 passed by the Maharashtra Administrative Tribunal,

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Nagpur Bench, Nagpur in Original Applications No. 105, 106, 111 and 112 of 2011 are quashed and set aside. Original Application No. 111 of 2011 is dismissed.

(P.N. Deshmukh, J. ) (B.R. Gavai, J.) …

halwai/p.s.

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