Ramesh Ranganathan, C.J (Oral):— The application, seeking condonation of the delay in preferring this appeal, is not opposed by Mr. Ghanshyam Joshi, learned counsel for the respondent-writ petitioner, and the delay is, therefore, condoned. Delay condonation application is, accordingly, disposed of.

2. This appeal is preferred by the Uttarakhand Subordinate Service Selection Commission (for short “the Commission”) aggrieved by the order passed by the learned Single Judge in Writ Petition (S/S) No. 3820 of 2018 dated 29.03.2019 The respondent-writ petitioner filed Writ Petition (S/S) No. 3820 of 2018 seeking a writ of mandamus commanding the respondents to declare her as qualified, and to call her for verification of documents on the basis of her merit, i.e the 54 marks secured by her, for the post of Village Panchayat Development Officer under the Uttarakhand Women category in the department of Panchayati Raj in District Uttarkashi for which the cut-off was 48 marks.

3. Facts, to the limited extent necessary, are that the Commission issued an advertisement on 20.11.2015 inviting applications for recruitment for several posts in Group ‘C’ category, which included 196 posts of Village Panchayat Development Officer (for short “VPDO”) in the Panchayati Raj department for various districts of the State. of these 196 posts of VPDOs, 11 were earmarked for Uttarkashi district of which 04 posts were earmarked for the General Category, 04 posts were reserved in favour of General Category (Women) and the remaining three posts were reserved one each in favour of Uttarakhand Andolankari (General), the Scheduled Castes and the Scheduled Castes (Women) respectively.

4. The respondent-writ petitioner belongs to the Other Backward Classes category, in whose favour no reservation was provided. The respondent-writ petitioner applied for the post of VPDO as a General Category candidate and secured 54 out of 100 marks in the written examination. While the cut-off marks for General Category candidates was 62 out of 100 marks, the cut-off marks for General Category (Women) was only 48. As she secured 54 marks, the respondent-writ petitioner was not entitled to be considered for selection under the General Category, since she had secured less than the minimum cut-off marks for the said category of 62. She was, however, entitled to be considered for appointment to one of the four posts reserved in favour of General Category (Women), since she had secured 54 marks which was far more than the cut-off marks prescribed for General Category (Women) i.e 48 marks. On the ground that the respondent-writ petitioner belonged to the Other Backward Classes, and horizontal reservation had not been provided in favour of Other Backward Classes (Women), she was held not entitled to be considered for appointment to the post reserved in favour of the General Category (Women). Aggrieved thereby, the respondent-writ petitioner invoked the jurisdiction of this Court.

5. In the order under appeal, the learned Single Judge, relying on the judgments of the Supreme Court in Indra Sawhney v. Union of India: 1992 Supp (3) SCC 217; Gurmeet Pal Singh v. State of Punjab: (2018) 7 SCC 260; Tripurari Sharan v. Ranjit Kumar Yadav: (2018) 2 SCC 656; and Alok Kumar Pandit v. State of Assam: (2012) 13 SCC 516, observed that, even in terms of Section 3(6) of the U.P Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short the “1994 Act”), if a person belonging to the Scheduled Castes, the Scheduled Tribes or the Other Backward Classes gets selected on the basis of merit in an open competition with General Category candidates, he shall not be adjusted against the vacancies reserved for such category, but be considered on his merit in terms of Section 3(1) of the 1994 Act.

6. After referring extensively to the judgment of the Supreme Court, in Tripurari Sharan v. Ranjit Kumar Yadav: (2018) 2 SCC 656, the learned Single Judge observed that, in the light of the law laid down by the Supreme Court, a reserved category candidate could compete against unreserved posts by virtue of his/her superior merit; reliance placed by the respondents on the Government Order dated 18.07.2001 was misconceived; and the said Government Order did not prohibit a reserved category candidate from being considered against open category posts. The writ petition was allowed and the appellants were directed to consider the respondent-writ petitioner's claim for appointment as Uttarakhand (Woman) against an unreserved post, within four weeks. Aggrieved thereby, the present appeal.

7. Mr. Pankaj Purohit, learned Standing Counsel for the Commission, would submit that, while the respondent-writ petitioner was entitled to compete for General Category posts on her merit, she was not entitled to compete for posts earmarked for General Category (Women) since she was a woman belonging to the Other Backward Classes category; while General Category seats are available to all eligible candidates including the Other Backward Classes (Men & Women), the Scheduled Castes (Men & Women) and the Scheduled Tribes (Men & Women), posts horizontally reserved in favour of General Category (Women) are available only to be filled up from amongst women who do not belong to the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes; since the respondent-writ petitioner belongs to the Other Backward Classes, she was entitled to compete only for the posts reserved for Other Backward Classes (Women) and not for General Category (Women); since no posts were reserved for OBC (Women) in Uttarkashi district, she was not entitled to compete for posts earmarked for General Category (Women); the Government Order dated 18.07.2001, which prohibits Other Backward Classes (Women) from competing for posts earmarked for General Category (Women), was not subjected to challenge in the writ petition; and the learned Single Judge could not have, therefore, granted the respondent-writ petitioner the relief sought for in the writ petition.

8. The submission, now urged before us on behalf of the appellants, are largely based on the opinion of Justice Jeevan Reddy in Indra Sawhney v. Union of India: 1992 Supp (3) SCC 217. Since the learned Single Judge has relied on paragraph 811, and Mr. Pankaj Purohit, learned counsel for the Commission, would submit that it is paragraph 812 which is applicable, it is useful to refer both to paragraphs 811 and 812 of the said judgment. The Supreme Court, in Indra Sawhney v. Union of India: 1992 Supp (3) SCC 217, observed:

“…….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.

We are also of the opinion that this rule of 50% 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 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 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 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 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 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 not to continue that procedure…….”

(emphasis supplied)

9. Relying on the aforesaid observations of the Supreme Court, Mr. Pankaj Purohit, learned counsel for the Commission, would submit that horizontal reservation is category based; and only those, who belong to that particular category, would be entitled to claim the benefit of reservation and not others. The fallacy in this submission is the premise that posts, earmarked in favour of General Category (Women), are reserved only for women other than women belonging to the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes. The submission, in effect, is that the reservation provided in favour of General Category (Women) is a reservation in favour of women belonging to the unreserved category (women other than those belonging to the Backward Classes i.e the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes).

10. Vertical reservation is provided in favour of the Other Backward Classes, the Scheduled Castes and the Scheduled Tribes, whereas horizontal reservation, which can be provided under Article 16(1) of the Constitution of India, would cut-across all categories. In each category, i.e General, Other Backward Classes, Scheduled Castes, Scheduled Tribes, horizontal reservation can be provided. Horizontal reservation in favour of women in each category would only mean that men from that category are not entitled to be considered for appointment to such posts. In effect, for posts reserved for OBC (Women) even OBC (Men) are not entitled to compete. Similarly for posts reserved in favour of General Category (Women), all men are excluded from competing for being appointed to such posts, and nothing more. All women, whether they belong to the unreserved category, the OBCs, the Scheduled Castes and the Scheduled Tribes are entitled to compete for these posts on the basis of their inter-se merit. Providing horizontal reservation does not also affect the 50 per cent ceiling for vertical reservation.

11. The effect of horizontal reservation, being provided under each category, is that it is only women, who belong to the Other Backward Classes, who can compete for posts reserved for Other Backward Classes (Women) and not women who belong to the Scheduled Castes, the Scheduled Tribes and the unreserved category. Likewise, it is only women belonging to the Scheduled Castes and the Scheduled Tribes who can compete for posts horizontally reserved in favour of Scheduled Castes (Women) and Scheduled Tribes (Women). A woman, not belonging to the reserved category (OBC, SC and ST), is not entitled to compete for posts reserved in favour of Other Backward Classes (Women), Scheduled Castes (Women) and Scheduled Tribes (Women).

12. The converse, however, is not true. All women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the General Category. There is no reservation for posts in the General Category, and horizontal reservation in favour of women in the General Category is available to be filled up from amongst all women irrespective of their caste status. Posts, reserved in favour of General Category (Women), are available for all women from the State of Uttarakhand, and that would include women belonging to the reserved categories such as OBCs, SCs and STs, and women who do not. Holding otherwise, would result in surreptitious introduction of reservation in favour of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation frowned upon by the Supreme Court in The State Of Madras v. Srimathi Champakam Dorairajan: AIR 1951 SC 226. This question is no longer res integra and has, in fact, been answered by a Division Bench of this Court in Sudhir Kumar v. State of Uttarakhand (order in Writ Petition (S/B) No. 392 of 2017 dated 11.12.2018), which order was affirmed by the Supreme Court in its order in Special Leave to Appeal (C) No. 7801 of 2019 dated 15.04.2019

13. The learned Single Judge has referred extensively to the judgment of the Supreme Court in Alok Kumar Pandit v. State of Assam: (2012) 13 SCC 516, wherein it was held that a reserved category candidate, who is adjudged more meritorious than the open category candidates, is entitled to choose the particular service/cadre/post as per his choice/preference; and to Tripurari Sharan v. Ranjit Kumar Yadav: (2018) 2 SCC 656, wherein the Supreme Court held that candidates belonging to the reserved categories, who qualify on the basis of their own merit, are required to be placed in the general merit list, and cannot be counted against the quota reserved for a reserved category candidate.

14. The learned Single Judge was, in our view, justified in directing the appellants to consider the respondent-writ petitioner's claim for appointment, as she had secured 54 marks, which was more than all the four General Category (Women) candidates who were selected and appointed to the posts of VPDO in Uttarkashi district. The learned Single Judge has also held that the Government Order dated 18.07.2001 does not prohibit a reserved category candidate from being considered against an open category post. In any event, no Government Order can fall foul of the provisions of the 1994 Act, Section 3(6) of which enables a reserved category candidate, entitled to be selected on her merit, to be appointed to a General Category post, and not to be considered to a post set apart for the reserved categories.

15. The scope of interference in an intra-Court appeal is extremely limited, and it is only if the order under appeal suffers from a patent illegality would interference be justified. We find no such infirmity in the order under appeal. The appeal fails and is, accordingly, dismissed.

16. No costs.