K. Venkatesh and anr. Vs. Government of Andhra Pradesh, Home (Courts.C1) Department and ors. - Court Judgment

Excerpt:
- - thus, rule 10 of the special rules has rendered applicable to the recruitment process, the rule of special representation provided for in favour of scheduled castes, scheduled tribes and the backward classes, prescribed in a cyclic order in rule 22 of the andhra pradesh state and subordinate service rules (henceforth referred to as 'general rules') as well as the rule of special representation in favour of women candidates as contained in general rule 22-a. the 33 1/3rd of vacancies set apart for women candidates is a horizontal reservation which would cut across the vertical reservation and hence the total reservation of vacancies would not exceed the approved benchmark of 50%. lest, if the 33 1/3% of vacancies set apart for women are also treated as vertical reservations, then the total reservations would go to the extent of 79 1/3% which would then offend the principle of pegging the maximum percentage of reservations to 50%. learned counsel for the petitioners have placed strong reliance upon the judgments rendered by the supreme court in this respect in rajesh kumar daria v. (1) in the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women: it is too well known that when a cyclic order of rotation of vacancies/posts is prescribed, the process of recruitment is invariably commenced from the point where it has last stopped. on the contrary, if 15 women candidates, 3 sc -women candidates, 2 -st women candidates, and 5 bc -women candidates alone are found included in the merit list, then the respective most meritorious 2 -oc, 2- sc, 1 -st and 3 bc -women candidates will have to be picked up to make good the shortfall and the corresponding number of male candidates at the bottom of the merit list will have to be replaced by these respective numbers of women candidates. similar process was repeated amongst sc, st and bc categories as well. clearly, the process followed in the matter of finalisation of selections by the high court is erroneous. 26. the court considered indra sawhney (i), 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. 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 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 such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied. the important question is whether the reservation of posts/vacancies in favour of women should ever be treated at par with the reservations provided for by the state in terms of clauses (4) of articles 15 and 16 or should they be construed as special provisions in terms of clause (3) of article 15. that principle has now been well settled by the supreme court in anil kumar gupta's case as noticed supra. instead, we direct the respondents 1 and 2 to forthwith take up the cases of the petitioners herein as well as similarly situated candidates, irrespective of the fact whether they have made a grievance out of their non selection or not. even otherwise, they are liable to be adjusted against the vacancies that became available after the notification was published on 14.05.2007. since, special rule 20, clearly provided that the seniority of a person will be determined by the date of his appointment only, the additional appointments now are required to be made, will not also cause any inter se seniority dispute between the candidates who had already been appointed. the petitioners herein and the persons similarly placed like them who have not approached the court, the case of the petitioners and their cases shall have to be considered as per the guidelines issued by the apex court in anil kumar gupta's case (supra) and their appointments shall be made before next direct recruitment is conducted by the respondents 1 and 2. the inter-se seniority shall be fixed from the date of their appointment and they shall not claim any parity with the candidates already selected and appointed in the relevant recruitment.ghulam mohammed, j.1. these two writ petitions raise common questions of law relating to the process of selection of women candidates for appointment by the method of direct recruitment to the post of junior civil judges in the andhra pradesh state judicial service (henceforth referred to as 'judicial service') and hence they are heard together and are disposed of by this common judgment. since the facts are not in dispute, we prefer to set out the facts in wp no. 27080 of 20089, as they were narrated to us.2. the writ petitioner possesses ma and llb qualifications. he was enrolled as an advocate with the bar council of andhra pradesh in november 2003 and has eversince been practising at ranga reddy district courts, hyderabad. incidentally, he belongs to backward class - d category ('bc-d' for brevity).3. the high court of andhra pradesh has initiated the process of recruitment to 105 posts of junior civil judges in judicial service through the notification dated 14.5.2007 calling for applications from qualified candidates - 84 of the notified vacancies are sought to be filled in by the method of 'direct recruitment' while the balance 21 are sought to be filled up by the method of 'recruitment by transfer' i.e., from the source of internal candidates working in various categories declared as eligible for such recruitment. we are concerned in these two cases only with the process of 'direct recruitment'.4. rule 10 of the andhra pradesh state judicial service rules (henceforth called as 'special rules') has provided for reservation of appointments. since it will have a bearing upon the controversy to be resolved herein, we prefer to extract it, hereinbelow:rule 10. reservation of appointment:- (1) the rule of special representation namely, rule 22 in *[xxx] of the andhra pradesh state and subordinate service rules, in so far as it relates to the scheduled castes and scheduled tribes, shall apply separately to the appointments to be made by direct recruitment and recruitment by transfer to the categories of judicial magistrates of the second class and junior civil judges, and the reservation of appointment to these categories, in so far as it relates to the backward classes, shall be for the appointment to be made by direct recruitment only.[g.o.ms. no. 148, home (cts-a), dt. 24.2.1979][the words 'part ii' omitted by g.o. ms. no. 121, law, dt. 20.7.2001, w.e.f. 1.8.2001](2) the provisions relating to reservations made for appointment of women and carry forward vacancies there of as provided in rules 22 and 22-a of the andhra pradesh state and subordinate service rules, 1996 shall apply for direct recruits.thus, rule 10 of the special rules has rendered applicable to the recruitment process, the rule of special representation provided for in favour of scheduled castes, scheduled tribes and the backward classes, prescribed in a cyclic order in rule 22 of the andhra pradesh state and subordinate service rules (henceforth referred to as 'general rules') as well as the rule of special representation in favour of women candidates as contained in general rule 22-a. hence, the number of vacancies set apart for each of the reserved classes was accordingly notified in the notification no. 1 of 2007, dated 14.5.2007. out of a total of 20 vacancies provided for backward classes, the breakup amongst various groups is as follows:bc-a - 6 (2 for women), bc-b - 8 (4 for women), bc-c - 1, bc-d-5 (1 for women)out of 12 vacancies reserved for schedule castes, 4 are provided for women and similarly out of 6 vacancies provided for schedule tribes, 2 are earmarked for women. the balance 46 vacancies are declared as open category vacancies. out of them, 15 are shown reserved to be filled in with women candidates. thus, the notification of vacancies has strictly complied with the requirement of providing for reservation in favour of schedule castes, schedule tribes and backward classes and also setting apart 33 1/3% of vacancies in each segment to be filled with women candidates.5. the last date for receipt of applications was 11.6.2007. a screening test was conducted to all eligible candidates on 26.8.2007, which is only an objective type examination and for those qualified candidates in the screening test, a written test comprising of two papers carrying 100 marks each, in civil laws and criminal laws separately was conducted on 28.10.2007. based upon the marks obtained at this written test, candidates have been subjected to an oral interview test in the proportion of 3 times to the number of vacancies. 25 marks are set apart for the viva voce test. the writ petitioner appears to have secured 48% in civil law paper and 63% in criminal law paper and he was awarded 8.80 marks at the viva voce test. thus, in all he has secured 119.80 marks.6. based upon the recommendations made by the high court, the government of andhra pradesh approved the selection of 94 candidates in all and notified their selection through their orders contained in g.o ms. no. 164, home (courts-c.1) department, dated 23.10.2008. 77 of these 94 candidates are selected for appointment through the method of 'direct recruitment' while the remaining 17 were selected for appointment through the method of 'recruitment by transfer'. the petitioners are not selected. they have asserted that notwithstanding their superior merit position, they were not selected, for the high court and the state of andhra pradesh have both committed an error in treating the 33 1/3 of vacancies earmarked to be filled in by women candidates as a separate 'quota of reservation' in favour of such women candidates and as a result of this improper exercise, they lost out in the matter of selections. hence, these writ petitions have been instituted.7. it is contended by the learned counsel appearing for the petitioners that the vacancies which have been earmarked for various socially and educationally backward classes such as schedule tribes, schedule castes and backward classes is a distinct group and category by itself and that the state has provided 15% of vacancies to be filled in by candidates belonging to schedule castes, 6% of vacancies are similarly reserved to be filled in by candidates belonging to schedule tribes, while 25% of vacancies are set apart for all the four groups (a, b, c and d) of backward classes put together. thus, the total percentage of reservation provided for these socially disadvantaged segments come to 46%. they are liable to be treated as vertical reservations. while the posts set apart or earmarked for the women candidates to the extent of 33 1/3% of each of the segments viz., oc, sc, st and bc are not liable to be treated at par with the reservations provided for the socially disadvantaged segments noticed supra. the 33 1/3rd of vacancies set apart for women candidates is a horizontal reservation which would cut across the vertical reservation and hence the total reservation of vacancies would not exceed the approved benchmark of 50%. lest, if the 33 1/3% of vacancies set apart for women are also treated as vertical reservations, then the total reservations would go to the extent of 79 1/3% which would then offend the principle of pegging the maximum percentage of reservations to 50%. learned counsel for the petitioners have placed strong reliance upon the judgments rendered by the supreme court in this respect in rajesh kumar daria v. rajasthan public service commission : 2008 (1) scj 249 : (2007) 8 scc 785 : 2008 (5) alt 4.1 (dnsc) and shiv prasad v. govt of india : 2008 (8) scj 109 : (2008) 10 scc 382.8. a detailed counter affidavit has been filed on behalf of the 2nd respondent - high court, wherein it is contended that the notification has made it clear to the competing candidates that 33 1/3% of vacancies are 'reserved' for women candidates and further it was abundantly made clear that the direct recruitment will be processed as per rule 22-a of the general rules, as also rule 10(2) of the special rules and hence the petitioners cannot turn around now, after the entire process of selection has been finalized, to question the correctness of such a process. it was further contended that the validity of general rules 22 or 22-a or of rule 10(2) of the special rules has not been put in issue in these writ petitions. further the petitioners having participated in the process of selection cannot be allowed to question the correctness of the same after the selection of candidates was finalized. if the petitioners had a real and genuine grievance, they should have ventilated it immediately after the notification is published and not after having participated in the process of selection. it is suggested that the writ petitioners have indulged in speculation as they have waited and watched as to whether they would get selected or not and finding that they are not selected, they are now resorting to these writ petitions and hence they should not be permitted to indulge in such a speculative litigation, blowing hot and cold simultaneously. sri g. vidya sagar, learned counsel appearing for the high court, during his elaborate submissions has also pointed out that the rules that fell for consideration in rajesh kumar dana (supra) and shiv prasad (supra) are worded differently and those rules made it clear that the reservations in favour of women candidates as a horizontal reservation and hence the principle enunciated by the supreme court in the aforementioned two cases is not attracted to the present case. it is very strenuously contended by sri g. vidya sagar, that the rule making authority has not left any discretion to the recruiting/appointing authorities in the matter of direct recruitment, inasmuch as a cyclic order in which every 100 vacancies are required to be filled in, was set out in great detail in general rule 22 and hence the 2nd respondent -high court has strictly adhered to the said cyclic order while filling up the vacancies with the candidates belonging to the respective groups or categories including women candidates and hence an absolutely fair and transparent procedure which is in accordance with the mandate of articles 14 and 16 of our constitution, has been followed by the high court in the matter of direct recruitment resorted to pursuant to the notification dated 14.5.2007. hence, he suggests that the writ petitions deserve to be dismissed.9. in view of the rival contentions canvassed, the crucial question that falls for our consideration can be crystallized as under:whether the 33 1/3% of vacancies set apart to be filled in with women candidates exclusively in terms of general rules 22, 22-a r/w sub-rule (2) of special rules 10 would amount to providing an exclusive reservation in favour of women candidates or not and if so whether the total percentage of reservation would exceed the ceiling limit of 50%?10. article 14 of our constitution guarantees equality to every person and equal protection of all laws. added to that, article 15(1) has injuncted the state from discriminating any citizen on grounds only of religion, race, caste, sex or place of birth. however, clause (3) of article 15 does not prevent the state from making any special provision for women and children. in other words, clause (3) of article 15 is an enabling provision by which the cause of women and children can be advanced and promoted by making a special provision in their favour. similarly, article 15(4) enables the state from special provisions for advancement of any socially and educationally backward classes of citizens or for the scheduled castes or scheduled tribes. article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment under the state. at the same time, clause (4) thereof enables the state from making a provision for the reservation of appointments or posts in favour of any backward classes of citizens, which in the opinion of the state is not adequately represented in the service under the state. when all these provisions are conjointly read, what emerges is that the concept of equality enshrined under articles 14 and 16(1) enures to all persons/citizens of the country. but, at the same time, state is not prevented from making a provision of reservation in the matter of appointments in favour of such backward classes, which in the opinion of the state are not adequately represented in its services. in contrast to clause (4) of article 16, clause (3) of article 15 enables the state from making a special provision for advancing the cause of women and children. therefore, the reservations set apart by the state in favour of socially disadvantaged segments in terms of clause (4) of article 16 are a distinct and separate group from that of the special provision which the state makes for advancing the case of women and children in terms of clause (3) of article 15. these, three important articles in our constitution appearing in part iii, have fallen for a great amount of debate before our supreme court in a number of cases. starting with m.r. balaji v. state of mysore : air 1963 sc 649, the significant question which was engaging the attention of the supreme court was what could be the acceptable limit of ceiling which has got to be put on the total quantum of reservations. justice b.p. jeevan reddy, speaking for the majority in indra sawhney's case (1992) supp. 3 scc 217 crystallized the principle in this regard as follows:812. ... 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.thus, in indra sawhney's case (supra) a jurisprudential tool has been devised for purpose of ascribing constitutional sanction and permissible acceptability, for the special provisions made by the state for advancing the causes of the groups such as physically challenged, women, ex-servicemen, war widows etc. the concept of inter-locking has been devised thus rendering the reservations in respect of these groups as a horizontal reservation, which cuts across the social reservations which are described as vertical reservations. in this respect, the reservation provided for advancing the cause of women, cannot therefore be treated at par with the reservations provided for by the state in favour of the socially and educationally backward classes and as such reservations are treated as vertical reservations.11. when we look at special rule 10, all it made clear was that the percentage of reservations provided for, by the state, in its general rules 22 and 22a, has also been adopted for judicial service. hence, the respondents 1 and 2 have adopted the same percentages of reservations while publishing the notification on 14.5.2007. however, general rule 22a provided for reservation of women in appointments in the following manner:rule - 22a. women reservation in appointments:- notwithstanding anything contained in these rules or special rules or adhoc rules:(1) in the matter of direct recruitment to posts for which women are better suited than men, preference shall be given to women:provided that such absolute preference to women shall not result in total exclusion of men in any category of posts.(2) in the matter of direct recruitment to posts for which women and men are equally suited, there shall be reservation to women to an extent to 33 1/3% of the posts in each category of open competition, backward classes (group-a), backward classes (group-b), backward classes (group-c), backward classes (group-d), scheduled castes, scheduled tribes and physically handicapped and ex-servicemen quota:(3) in the matter of direct recruitment to posts which are reserved exclusively for being filled by women, they shall be filled by women only.note: (1) the principle of reservation for women candidates to the extent of 30% in the matter of direct recruitment shall be from (2-1-1984) to 27-5-1996 (g.o.ms. no. 928, general administration (ser-d) department, dt. 6.10.1995).(2) the principle of reservation for women candidates to the extent of 33 1/3% in the matter of direct recruitment shall be with effect from 28-5-1996 (g.o.ms. no. 237, general administration (ser-d) dept, dt. 28-5-1996).[g.o.ms. no. 65, g.a.(ser.d) dept., dt. 15.2.1997]since, for the posts of junior civil judges, both men and women are equally suited, it is the sub-rule (2) that gets attracted. the crucial expressions used therein are '... there shall be reservation to women to an extent of 33 1/3% of the posts in each category....' when we look at sub-rule (2) of general rule 22, it merely attempted to reconcile both the social reservations provided for in terms of article 15(4) and 16(4) and the special reservation provided in favour of women in accordance with article 15(3) of our constitution. the cyclic order of vacancies notified thereunder, only ensured that a proper balance is maintained in the cadre, every time, the recruitment process is undertaken. it is too well known that when a cyclic order of rotation of vacancies/posts is prescribed, the process of recruitment is invariably commenced from the point where it has last stopped. it is one continuous process, that is all. beyond that, it does not convey any policy of the state that the 33 1/3% of vacancies reserved for women is in addition to the total reservation of 46% provided by it in favour of scheduled caste, scheduled tribe and backward class candidates.12. we, therefore have no hesitation to hold that general rules 22, 22-a and special rule 10, are only intended to advance the cause of women by ensuring that 33 1/3% of vacancies in each category such as oc, sc, st and bc, are filled in by such women candidates. such reservation of 33 1/3% in favour of the women is a horizontal reservation, but not a vertical reservation. if we were to construe it otherwise as a vertical reservation, the total percentage of reservations would touch 79 1/3%, thus reducing the open competition vacancies to a mere 202/3% which is wholly impermissible. it will then, fall foul of the crystallized ceiling limit of 50%. therefore, to save the reservation of posts/vacancies in favour of women from such a catastrophe, they are liable to be treated only as horizontal reservation. in other words, in each of the segments viz., open competition, schedule castes, schedule tribes or backward classes, the state will ensure that 33 1/3% of vacancies are filled in by women. if in the normal course of finalizing the merit lists, such number of women candidates representing 33 1/3% make their grade on their own, no further action is needed to be undertaken by the state. but, on the other hand, if there is any shortfall of women candidates, to the extent of such shortfall, from the bottom of the list, the meritorious male candidates would be replaced in the reverse order by the next most meritorious women candidates in their descending order of merit. to illustrate this by an example, if 51 open competition vacancies, 15 schedule caste vacancies, 9 schedule tribe vacancies and 25 backward class vacancies have to be filled in by the state, simultaneously providing 33 1/3 thereof to be filled in by women candidates, what all is required to be done is to arrange the names of the candidates belonging to the open category, schedule caste, schedule tribe, backward classes in the descending order of merit to the exact requisite numbers, i.e., 51 - open, 15 - sc, 9 - st and 25 -bc, then it shall count as to the number of women candidates already included therein. if there are 17 women candidates in the open competition list of 51 candidates, then, no further action is needed to be taken up. similarly, if 5 - sc women, 3 - st women and 8 - bc women are found included in those respective lists, no further action is needed to be undertaken by the state. on the contrary, if 15 women candidates, 3 sc - women candidates, 2 -st women candidates, and 5 bc - women candidates alone are found included in the merit list, then the respective most meritorious 2 - oc, 2- sc, 1 - st and 3 bc - women candidates will have to be picked up to make good the shortfall and the corresponding number of male candidates at the bottom of the merit list will have to be replaced by these respective numbers of women candidates. that will ensure the representation of 33 1/3% of women candidates in the respective categories of selection, without seriously compromising the overall merit of the candidates.13. unfortunately, in the instant case, the procedure that was adopted by the high court was slightly different. it has treated 15 - oc vacancies as specifically reserved for women exclusively. consequently, as against 46 vacancies that were required to be filled in by oc candidates, they have finalized the merit list for the first 31 candidates and thereafter the next 15 slots are filled in exclusively by women candidates. within the first 31 open category candidates, there are eight candidates already who made the grade. but, still 15 more women candidates have been selected, instead of picking up only 7 women. thus, there are a total of 23 women candidates out of 46 candidates that were selected amongst the open category. similar process was repeated amongst sc, st and bc categories as well. clearly, the process followed in the matter of finalisation of selections by the high court is erroneous.14. we are fortified in our view by a judgment rendered by a full bench of our high court in md.abdul azeez asad v. state of andhra pradesh : 2005 (3) alt 252 (fb)(to which one of us - gm,j is a party), wherein a similar question relating to the reservation in favour of 33 1/3% of women candidates in the matter of admission to post graduate medical courses has fallen for consideration and the full bench has answered the said question as follows:issue no. 1:women's reservation:32. article 15(3) enables the state to make special provision for women and children. affirmative action including by way of reservation in favour of women is thus enabled by the equality injunctions to the constitution and by the explicit provisions of article article 15(3).34. another contention urged on this aspect is that providing 33 1/3 per cent reservation for women has the effect of transgressing the 50 per cent limit of permissible reservations. the contention goes: there are already reservations to an extent of 46 per cent in favour of the scheduled castes, the scheduled tribes and the backward classes and if 33 1/3 per cent of the seats are reserved in favour of women, the actual number of un-reserved seats would fall below the 50 per cent mark.35. the above contention does not merit acceptance. in indra sawhney v. union of india (1992) supp. 3 scc 217. jeevan reddy, j. speaking for himself, m.h. kania, c.j., m.n. venkatachaliah, and a.m. ahmadi jj (the majority) pointed out, in the context of public employment, that reservations contemplated under clause (4) of article 16 should not exceed 50 per cent. however, the learned judge clarified that this limit of 50 per cent applies only to reservations under article 16(4) in favour of the backward classes and that there are two types of reservations which for convenience could be referred to as 'vertical reservations' and 'horizontal reservations'. the supreme court considered the reservations in favour of physically handicapped as belonging to the species of 'horizontal reservation' relatable to article 16(1). the court pointed out that persons selected against such quota (physically handicapped) would be placed in the appropriate category i.e., sc/st/bc/oc by necessary adjustments being made and that even after providing such horizontal reservations, the percentage of reservations in favour of the backward classes of citizens remains the same. what was delineated by the supreme court above in the case of reservations under article 16 and the principle that horizontal reservations do not have the propensity or the effect of insular exclusion, equally holds true for reservations made in favour of women. reservations for women also have a horizontal signification. women provided affirmative opportunities are fitted into the several categories of reservations and the un-reserved category such as sc/st/bc/oc. there is thus no increase in the quantum of reservation to the totally exclusion of people belonging to other (un-reserved) communities. the 33 1/3 per cent reservation provided for women in admission to post-graduate medical courses, therefore, does not fall foul of the principle of ceiling on reservations.15. further, the supreme court had also been confronted with a similar question with regard to reservation in favour of women candidates in the matter of employment in anil kumar gupta v. state of uttar pradesh : (1995) 5 scc 173, rajesh kumar daria v. rajasthan public service commission (supra) and shiv prasad v. govt of india (supra) and the said question has been answered in the following manner: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% reservation which is maximum? our reply is in the negative. let us consider the issue.22. in indra sawheny (i), justice jeevan reddy dealt with this aspect. his lordship observed that there are two types of 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;812. ... 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.24. a similar question came up for consideration in swati gupta' case. 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 was thus violative of the constitutional guarantee under articles 14, 16, 19 and 21 and of the constitution as also the ratio laid down in indra sawhney (i). the government of u.p., however, issued another notification clarifying its stand on reservations.25. in the amended notification, it was clarified that the 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 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.26. the court considered indra sawhney (i), 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.27. the court stated (swati gupta case);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 the general category to 35% due to vertical reservation 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 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 was said by this court in indra sawhney.28. a similar question was raised in anil kumar gupta and ors. v. state of up. referring to indra sawhney (i)'s case and swati gupta's case, the court observed;18. 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 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 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 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 compartmentalised horizontal reservation, then 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 per cent in favour of special categories, overall, 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 the oc quota.29. it is thus clear that the reservation for women candidates cannot be held invalid or in excess of permissible quota. in fact, reservation policy itself makes this position clear....16. therefore, we are convinced that the principle adopted and followed in the matter of selections to the posts of junior civil judges pursuant to the notification no. 1/2007-rc, dated 14.5.2007 by the respondents 1 and 2 is contrary to the principles laid down by the supreme court and hence it cannot be approved.17. in fact the contention canvassed by sri g.vidya sagar, that the rule in rajesh kumar daria and shiv prasad is worded differently than in the instant case does not make any difference, in principle. the important question is whether the reservation of posts/vacancies in favour of women should ever be treated at par with the reservations provided for by the state in terms of clauses (4) of articles 15 and 16 or should they be construed as special provisions in terms of clause (3) of article 15. that principle has now been well settled by the supreme court in anil kumar gupta's case as noticed supra. hence, to ascribe constitutional sanction, the supreme court laid down the principle of treating reservation in favour of women candidates as a horizontal reservation, but not as a vertical reservation. we are bound by this principle of jurisprudence. therefore, we are unable to subscribe to the view canvassed by sri vidya sagar, appearing for the 2nd respondent, as the rules in the above said cases merely made explicitly clear what is otherwise implicit.18. the 2nd question that has fallen for our consideration is purely an ancillary question. in view of our finding that the procedure adopted in the matter of finalisation of the selection of candidates particularly of women candidates being contrary to the settled principle of law, we hold that the total percentage of reservation shall not be allowed to exceed 50% ceiling limit and consequently the reservation of 33 1/3% in favour of women shall be treated as a horizontal reservation only. our understanding of the prescription of the cyclic order of vacancies provided in general rule 22 read with general rule 22a is also intended to achieve the same objective.19. that leaves us with the task of dealing with an apprehension entertained by sri g. vidya sagar, as how to modulate the competiting claims. admittedly, several women candidates have been recruited in excess of the permissible limits. however, all such women candidates are either subjected to training or issued with posting orders rendering them eligible to preside over the courts, whereever they were posted. their selection is not due to any fault on their part. there is no misrepresentation in this regard indulged in by them. instead of upsetting their selection and appointments, we prefer not to disturb their selection and appointments. instead, we direct the respondents 1 and 2 to forthwith take up the cases of the petitioners herein as well as similarly situated candidates, irrespective of the fact whether they have made a grievance out of their non selection or not. the relief cannot be confined only to those candidates who have approached the court. that would amount to paying a premium to litigation. in the matter of recruitment to public offices and public employment, it is the merit of the candidate but not the litigative zeal that should fetch the end result. therefore, we direct the respondents 1 and 2 to forthwith undertake the review of the cases of all such candidates who missed out the selection in view of improperly treating the vacancies set apart to the extent of 33 1/3% in favour of women as an exclusive reservation and appoint such number of candidates, who would have otherwise made the grade. since, the total number of vacancies notified for direct recruitment could not be filled in, perhaps, it may not be difficult to adjust these additional vacancies. even otherwise, they are liable to be adjusted against the vacancies that became available after the notification was published on 14.05.2007. since, special rule 20, clearly provided that the seniority of a person will be determined by the date of his appointment only, the additional appointments now are required to be made, will not also cause any inter se seniority dispute between the candidates who had already been appointed.20. for all the aforementioned reasons, we uphold the plea that the manner of selection and appointment of women candidates in each category of posts is not correctly followed and therefore the writ petitions deserves to be allowed and they are accordingly allowed.21. however, it is stated that the unofficial respondents who are selected and appointed are undergoing training, we do not want to disturb their selection and dislodge them. the petitioners herein and the persons similarly placed like them who have not approached the court, the case of the petitioners and their cases shall have to be considered as per the guidelines issued by the apex court in anil kumar gupta's case (supra) and their appointments shall be made before next direct recruitment is conducted by the respondents 1 and 2. the inter-se seniority shall be fixed from the date of their appointment and they shall not claim any parity with the candidates already selected and appointed in the relevant recruitment. no order as to costs.