{"id":150555,"date":"2008-04-25T00:00:00","date_gmt":"2008-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shiv-prasad-vs-government-of-india-ors-on-25-april-2008"},"modified":"2015-04-21T04:19:11","modified_gmt":"2015-04-20T22:49:11","slug":"shiv-prasad-vs-government-of-india-ors-on-25-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shiv-prasad-vs-government-of-india-ors-on-25-april-2008","title":{"rendered":"Shiv Prasad vs Government Of India & Ors on 25 April, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shiv Prasad vs Government Of India & Ors on 25 April, 2008<\/div>\n
Author: C Thakker<\/div>\n
Bench: C.K. Thakker, D.K. Jain<\/div>\n
           CASE NO.:\nAppeal (civil)  2979 of 2008\n\nPETITIONER:\nSHIV PRASAD\n\nRESPONDENT:\nGOVERNMENT OF INDIA & ORS\n\nDATE OF JUDGMENT: 25\/04\/2008\n\nBENCH:\nC.K. THAKKER & D.K. JAIN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nREPORTABLE<\/p>\n
CIVIL APPEAL NO.  2979 OF 2008
\nARISING OUT OF
\nSPECIAL LEAVE PETITION (C) NO. 23900 OF 2003
\nWITH
\nCIVIL APPEAL NO. 2989  OF 2008
\nARISING OUT OF
\nSPECIAL LEAVE PETITION (CIVIL) NO.14514 OF 2004
\nDr. (Mrs.) MADHU JAIN\t    \t\t  APPELLANTS
\nVERSUS
\nGOVERNMENT OF INDIA & ORS. \t  RESPONDENTS<\/p>\n
C.K. THAKKER, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tBoth these appeals have been instituted by
\nthe appellants being aggrieved and dissatisfied
\nwith the judgment and order passed by the High
\nCourt of Uttranchal (now Uttrakahand) on
\nSeptember 18, 2003 in Writ Petition No. 802 <\/span>
\n(S\/B) of 2001.\n<\/p>\n
3.\t\tShortly stated the facts of the case
\nare that on August 10, 2000, Roorkee University
\nissued an advertisement for filling up various
\nvacancies in different faculties.  The
\ncontroversy in present appeals relates to the
\nvacancy position in the Department of
\nMathematics.  As observed in the impugned
\njudgment of the High Court, there were six
\nposts of Professors (unreserved) and three
\nposts of Associate\/Assistant Professors.  Out
\nof three posts, two were reserved for Scheduled
\nCaste candidates while one was for General
\nCategory: Unreserved (UR).  They were to be
\nfilled under Flexible Cadre Structure (FCS) in
\naccordance with reserve roaster notified by the
\nGovernment of Uttar Pradesh under whose control
\nthe University was functioning at the relevant
\ntime.  Appellants in both the appeals applied
\nin March, 2001. Interviews were conducted on
\nMarch 20, 2001.  Selection Committee met on the
\nnext day, i.e. March 21, 2001.  It is the case
\nof the writ petitioner that he was selected for
\nthe post of Associate Professor.  According to
\nhim, respondent No. 4 (Dr. Madhu Jain) was not
\nfound eligible and was neither selected nor
\nrecommended. The writ petitioner, however, did
\nnot receive an appointment letter for quite
\nsome time. On the contrary, he came to know
\nthat respondent No. 4 was intimated by the
\nUniversity that she was selected and being
\nappointed as Assistant Professor in the
\nDepartment of Mathematics. The writ petitioner
\nmade representations. Since there was no
\nfavourable reply, he was constrained to
\napproach the High Court by filing a writ
\npetition. The Division Bench of the High Court
\nby the order impugned in the present appeals,
\nallowed his petition, set aside the appointment
\nof respondent No. 4 but directed the University
\nto re-advertise the post and to conduct the
\nselection process afresh.  Consequence of the
\norder passed by the High Court was that the
\nwrit petitioner succeeded and selection and
\nappointment of respondent No. 4 to the post of
\nAssistant Professor in Mathematics had been set
\naside, but no effective relief had been granted
\nin favour of writ petitioner.  The grievance of
\nthe writ petitioner in the present appeal is
\nthat though he was eligible, qualified, found
\nfit and recommended for appointment to the post
\nof Associate Professor, he was not appointed.
\nThe High Court, no doubt, allowed his writ
\npetition but it was wrong in directing re-
\nadvertisement of the post and to conduct
\nselection process afresh.  The complaint of
\nrespondent No. 4-appellant in the cognate
\nappeal, on the other hand, is that on the facts
\nand in the circumstances of the case, she was
\nrightly selected, recommended and appointed as
\nAssistant Professor in Mathematics and the High
\nCourt was not justified in setting aside her
\nappointment. The action of the University in
\nappointing her was legal and valid and ought
\nnot to have been disturbed by the High Court.\n<\/p>\n
4.\t\tOn January 6, 2004, notice was issued
\nby this Court in Special Leave Petition
\ninstituted by the writ petitioner.  The parties
\nwere directed to exchange affidavits.
\nMeanwhile, respondent No. 4 also instituted
\nSpecial Leave Petition on January 29, 2004. In
\nthat matter also notice was issued. Both the
\nmatters were then ordered to be placed for
\nfinal hearing on a non-miscellaneous day and
\nthat is how the matters have been placed before
\nus.\n<\/p>\n
5.\t\tWe have heard the learned counsel for
\nthe parties.\n<\/p>\n
6.\t\tThe learned counsel for the appellant-
\nwrit petitioner contended that the writ
\npetitioner was working as Assistant Professor.
\nPursuant to an advertisement issued by the
\nUniversity for filling up posts of Associate\/
\nAssistant Professor (Combined Cadre), the writ
\npetitioner applied and got himself selected and
\nwas recommended for appointment to the post of
\nAssociate Professor.  It was also submitted
\nthat there was no merit list for the Combined
\nCadre of Associate\/Assistant Professor, and
\nhorizontal reservation could not be applied.
\nMoreover, the post of Associate Professor is a
\npromotional post from the post of Assistant
\nProfessor which the writ petitioner was
\nholding.  In other words, the post of Assistant
\nProfessor is the feeder post from which a
\nperson may be promoted to the higher post of
\nAssociate Professor.  Since there was only one
\npost of Associate Professor, even otherwise,
\nthe rule of reservation does not apply to a
\nsingle post.  In the advertisement also, the
\npost was shown as UR (unreserved).  Respondent
\nNo. 4 was an outside candidate, i.e. she was
\nfrom Agra University and she had wrongly been
\nselected under FCS [Flexible Cadre Structure]
\nas Assistant Professor in the Combined Cadre of
\nAssociate\/Assistant Professor.  It was also
\nsubmitted that the High Court wrongly
\ninterpreted and applied a decision of this
\nCourt in Swati Gupta v. State of Uttar Pradesh,
\n(1995) 2 SCC 560 : JT 1995 (2) SC 438 and
\nrefused relief to the writ petitioner.  Once
\nthe High Court upheld his contention that the
\nUniversity was not right in appointing
\nrespondent No. 4 as Assistant Professor, it
\nought to have allowed the petition in its
\nentirety by directing the authorities to
\nappoint writ petitioner to the post of
\nAssociate Professor.  To that extent,
\ntherefore, the order passed by the High Court
\ndeserves to be set aside by granting
\nconsequential relief to the writ petitioner.\n<\/p>\n
7.\t\tThe learned counsel for respondent No.
\n4 who has also approached this Court against
\nthe order setting aside her appointment,
\ncontended that the High Court has committed an
\nerror of law in allowing the petition filed by
\nthe writ petitioner and in quashing her
\nappointment.  It was submitted that admittedly,
\nthe cadre of Associate Professor and Assistant
\nProfessor is combined and even the
\nadvertisement was issued showing both the
\ncadres as ‘combined’ one.  One post was
\nreserved in women category.  According to the
\npolicy of the U.P. Government, there should be
\n20% reservation for ‘women candidates’.  The
\nsaid policy had been accepted and implemented
\nby the University.  Since there were three
\nposts in the ‘Combined Cadre’, one was reserved
\nfor a woman candidate.  Respondent No. 4 was a
\nwoman candidate so far as Assistant Professor
\n(Mathematics) was concerned.  In view of the
\nsaid fact, the University was fully justified
\nin selecting her, recommending her name for
\nAssistant Professor and in giving appointment.
\nThe writ petitioner could not have made
\ngrievance against her appointment and the High
\nCourt was not right in setting aside the
\nappointment of respondent No. 4.  She had,
\ntherefore, prayed that the writ petition filed
\nby the writ petitioner may be dismissed and her
\nappointment may be restored by modifying the
\ndirection of the High Court to re-advertise the
\npost and to undertake selection process afresh.
\nIt was also urged that the writ petitioner had
\nmade prayer only to quash appointment of
\nrespondent No. 4 in the writ petition and no
\nrelief was sought seeking his appointment to
\nthe post of Associate Professor.  Therefore,
\neven otherwise, he cannot be ordered to be
\nappointed as Associate Professor and his appeal
\nis liable to be dismissed.\n<\/p>\n
8.\t\tThe learned counsel for the University
\nsupported the action taken by the University.
\nAccording to him, there was no challenge to the
\nCombined Cadre of Associate Professor\/Assistant
\nProfessor. The contention of the writ
\npetitioner that he was already holding the post
\nof Assistant Professor and was seeking
\nselection and appointment to the higher and
\npromotional post of Associate Professor was
\nwholly irrelevant. Once it is conceded that
\nappointments were to be made to Combined Cadre,
\nthe cases will have to be considered on that
\nbasis.  In the instant case, one vacancy in the
\nCombined Cadre of Associate Professor\/Assistant
\nProfessor was reserved for women candidate and
\nsince respondent No. 4 was available, she was
\nrightly selected, recommended and appointed as
\nAssistant Professor and the writ petitioner
\ncould not have challenged that action.  The
\ncounsel also stated that respondent No. 4 was
\nselected as Assistant Professor. The High Court
\nunfortunately failed to appreciate in its
\nproper perspective the concept of ‘Combined
\nCadre’ and wrongly allowed the petition, set
\naside the appointment of respondent No. 4 and
\ndirected re-advertisement and fresh process.
\nTo that extent, therefore, the High Court was
\nin error.  He, therefore, submitted that the
\nappeal filed by the writ petitioner is liable
\nto be dismissed and the appeal of respondent
\nNo. 4 deserves to be allowed.\n<\/p>\n
9.\t\tHaving considered the rival
\ncontentions of the parties, in our opinion, the
\nHigh Court was in error in allowing the
\npetition filed by the writ petitioner and in
\nsetting aside the appointment of respondent No.
\n4 as Assistant Professor.\n<\/p>\n
10.\t\tIt is no more in dispute that the
\ncadre of Associate Professor and Assistant
\nProfessor is combined one.  An advertisement
\nwas issued on that basis.  Applications were
\ninvited and all candidates applied on that
\nfooting.  Legality of ‘Combined Cadre’ was not
\nchallenged in the petition.  The Court is,
\ntherefore, required to consider the case and
\ndecide treating ‘Combined Cadre’ as legal and
\nvalid.  It is also clear that reservation
\npolicy of the State Government has been
\naccepted by the University and has been
\nenforced in making various appointments.  This
\nis also clear from the letter, dated February
\n26, 1999 by the Secretary, Government of U.P.
\nto various authorities wherein it was expressly
\nstated that a decision of 20% reservation for
\nwomen in direct appointment had been taken by
\nthe Government.  Moreover, even the
\nadvertisement in question, dated August 10,
\n2000, pursuant to which applications were made
\nby the writ-petitioner as also by respondent
\nNo. 4 refers to the advertisement and
\nspecifically states that the reservation policy
\nof the Government will apply in filling up of
\nposts.  The High Court, in the circumstances,
\nought to have considered and decided the
\nquestion proceeding on the basis that there was
\nreservation of 20% for women.\n<\/p>\n
11.\t\tNow, from the record, it is clear that
\nthe writ-petitioner was selected and
\nrecommended for the appointment as Associate
\nProfessor since he was already working as
\nAssistant Professor (feeder cadre), was
\neligible to be appointed as Associate Professor
\nand was found fit by the Selection Committee.\n<\/p>\n
12.\t\tBut it also cannot be ignored or
\noverlooked that respondent No 4 had also
\napplied to be appointed as Assistant Professor.
\nThe learned counsel for the writ petitioner
\ncontended that respondent No. 4 was not
\neligible to be considered for the post of
\nAssociate Professor inasmuch as she was an
\n‘outsider’, i.e. not from the University of
\nRoorkee but from the University of Agra and
\nthat she was not eligible and qualified to be
\nselected and appointed as Associate Professor
\nsince she was not working as Assistant
\nProfessor which is the feeder cadre.\n<\/p>\n
13.\t\tThe learned counsel is right to that
\nextent.  The High Court, upholding the
\ncontention of the writ petitioner, allowed his
\npetition and set aside the appointment of
\nrespondent No. 4.  It is, however, important to
\nnote that the cadre is a Combined Cadre of
\nAssociate Professor as well as Assistant
\nProfessor.  An advertisement was also issued on
\nthe basis of Combined Cadre.  The said action
\nwas never challenged by the writ-petitioner.
\nThe reservation policy of the Government of
\nU.P. was applied by the University which is
\nalso not in dispute.  Even the advertisement
\nrefers to such policy.  In the circumstances,
\nthe only question is whether appointment of
\nrespondent No. 4 to the post of Assistant
\nProfessor could legally have been made by the
\nUniversity.\n<\/p>\n
14.\t\tIn our considered opinion, in the
\nlight of the above facts and circumstances,
\nnamely, the cadre of Associate Professor and
\nAssistant Professor is a Combined Cadre, the
\npolicy of reservation of U.P. Government
\nprovides for 20% reservation for women, the
\nsaid policy has been accepted by the
\nUniversity; that even the advertisement
\nreferred to that policy, the advertisement also
\nprovided for selection and appointment on the
\nCombined Cadre of Associate\/ Assistant
\nProfessor, that respondent No. 4 was a woman
\ncandidate for the post of Assistant Professor
\nand was duly considered, selected and
\nrecommended for the post of Assistant
\nProfessor, selection and recommendation of the
\nwrit petitioner as Associate Professor, in our
\nconsidered opinion, was irrelevant.  In view of
\nCombined Cadre of Associate\/Assistant
\nProfessor, the Selection Committee was enjoined
\nto consider the matter on the policy of the
\nGovernment keeping in view reservation for
\nwomen.  Hence, even though the writ petitioner
\nwas found fit, selected and recommended by the
\nCommittee for the post of Associate Professor,
\nin the light of the reservation policy,
\navailability of respondent No. 4 and her
\nselection to the post of Assistant Professor,
\nthe action of the University in appointing her
\nto that post and not appointing the writ
\npetitioner as Associate Professor cannot be
\nheld illegal, unlawful or contrary to law and
\ncould not have been set aside by the High
\nCourt.\n<\/p>\n
15.\t\tIt was contended by the learned
\ncounsel for the writ-petitioner in the High
\nCourt as also before us that there was only one
\npost of Associate\/Assistant Professor and as
\nper settled principle of law, the rule of
\nreservation does not apply to ‘Single Cadre
\nPost’.  The counsel, in this connection, relied
\nupon a decision of this Court in Post Graduate
\nInstitute of Medical Education & Research,
\nChandigarh v. Faculty Association & Ors.,<\/a>
\n(1998) 4 SCC 1 : JT 1998 (3) SC 223.\n<\/p>\n
16.\t\tSo far as the proposition of law is
\nconcerned, there can be no two opinions about
\nit.  It was, however, the case of the
\nrespondents that this was not a case of ‘Single
\nCadre Post’.  In this connection, the attention
\nof this Court was invited to an affidavit filed
\nby the Registrar of the University clarifying
\nthe position.\n<\/p>\n
17.\t\tThe deponent while dealing with
\n‘preliminary submissions’, in para (ii) stated;
\n\tThe post of Associate Professor
\nand Asstt. Professor are in the Joint
\nCadre under the ‘Flexible Cadre
\nStructure’ and as such the number of
\nthese posts is to be jointly counted
\nfor the purpose of women’s reservation
\nin the advertisement issued by the
\nUniversity, a copy of which is annexed
\nas Annexure P-1 to the S.L.P. one post
\nin General Category and two posts for
\nS.C. category (total three posts) have
\nbeen shown as vacant under the heading
\nof ‘Associate Professor\/ Asstt.
\nProfessor’ and when the reservation of
\n20% for the women was calculated on
\nthree vacancies, the figure came to
\n0.6 meaning thereby, that one post had
\nto be horizontally reserved for a
\nwomen candidate who may be found
\neligible for selection.  Dr.  Madhu
\nJain, a selected woman candidate, was
\ntherefore, correctly given the
\nappointment of Asstt. Professor.  This
\noffer had also been accepted by Dr.
\nMadhu Jain.\n<\/p>\n
\tIt is significant to bring it to
\nthe kind notice of this Hon’ble Court
\nthat had Dr. Madhu Jain not accepted
\nthe offer of appointment to the post
\nof Asstt. Professor, the other woman
\ncandidate on the combined panel,
\nnamely, Dr. (Ms.) Pratibha, would have
\nbeen offered appointment.\n<\/p>\n
\tThus it is submitted that the
\npositions of Associate Professor and
\nAsstt. Professor were both in the
\n‘Joint Cadre’ in the University under
\nthe ‘Flexible Cadre Structure’,
\napproved for the University by the
\nU.P. Govt. and according to the policy
\nof the U.P. Govt. (which was followed
\nin the University), 20 percent of all
\nthe advertised posts in a Deptt. Other
\nthan Professors, were to be reserved
\n“Horizontally” for the women
\ncandidates.\n<\/p>\n
\tThe University had implemented the
\nreservation policy of the Govt. for
\nreservation of the women in services
\nin letter and spirit, it was not
\npossible to offer an appointment to
\nthe Petitioner first, when women
\ncandidates were on the panel and
\naccording to the provision for
\nhorizontal reservation, they were
\nentitled in turn, to get the
\nappointment first.\n<\/p>\n
18.\t\tThe University, through its Registrar,
\nfurther stated in the counter that the
\nUniversity had considered the provisions of the
\nRoorkee University Act, 1947, the policy of
\nreservation framed by the Government of U.P.
\nand also the direction issued and law laid down
\nby this Court in Indra Sawhney v. Union of
\nIndia,<\/a> 1992 Supp (3) SCC 217 : JT 1992 (6) SC
\n273 (Indra Sahney I) that the total reservation
\nof vacancies of all categories should not
\nexceed 50% of the total vacancies.\n<\/p>\n
19.\t\tThe University, then stated;
\n\tIf we apply the aforesaid mandate
\nto the facts of the present case in
\nthe Department of Mathematics
\nreservation roster register worked
\nlike this:\n<\/p>\n
(a)\tUpto the year 1999 and immediately
\nbefore the impugned advertisement
\ndated 10.8.2000 (R-3) the University
\nhad utilized 10 roster points for the
\nDepartment of Mathematics.  Out of
\nthese 10 roster points while 02
\nvacancies were to go to SCs, 03 were
\nto go to OBCs and 05 unreserved. 05
\nvacancies for OBCs and 05 unreserved
\nhad been filled up, while 02 vacancies
\nreserved for SCs remained unfilled for
\nwant of suitable candidates.  This
\nposition emerged out after conducting
\n02 special recruitment drives in
\naddition to normal recruitment between
\n1995 to 1999.\n<\/p>\n
(b)\tThe 11th Roster point meant for a
\nScheduled Caste was filled up during
\nthis recruitment.  The 12th roster
\npoint (for unreserved category) and
\nthe 13th (for OBC) were separately
\nadvertised for the Master of Computer
\nApplications (MCA Programme) an inter
\ndisciplinary programme, being run by
\nthe Department of Mathematics as the
\nAdministrative Department.\n<\/p>\n
(c)\tCame then the 14th roster point
\nmeant for an unreserved candidate, on
\nwhich Dr. (Mrs.) Madhu Jain was
\nappointed.\n<\/p>\n
(d)\tThe net result thus is that out of
\nthe 14 roster points so far utilized,
\n2 were meant for the MCA Programme,
\nwhile remaining 12 had the under-
\nmentioned distribution:-\n<\/p>\n
SC\t\t –\t3 (2 unfilled)<\/p>\n
OBC\t\t–\t3 (filled)<\/p>\n
Unreserved –\t6 (filled)<\/p>\n
It is, therefore, crystal clear that
\nout of the 12 roster points utilised
\ntill date, 6 went to the unreserved
\ncandidates and 6 to the reserved
\ncandidates of different categories,
\nthereby assiduously following the 50%
\nmandate of the Hon’ble Supreme Court
\nexpounded in Indira Sawheny’s case
\nsupra.\n<\/p>\n
20.\t \tIt is thus clear that the action of
\nthe University had neither violated any
\nprovision of law nor was inconsistent with the
\nlaw laid down in Indra Sawheny I.\n<\/p>\n
21.\t\tThe next question then is : How can
\nthis woman-reservation be implemented and
\nenforced?  Whether such reservation will
\nviolate Indra Sawheny (I) and exceed 50%
\nreservation which is maximum?  Our reply is in
\nthe negative.  Let us consider the issue.\n<\/p>\n
22.\t\tIn Indra Sawheny (I), Justice Jeevan
\nReddy dealt with this aspect.  His Lordship
\nobserved that there are two types of
\nreservations; (i) vertical reservations; and\n<\/p>\n
(ii) horizontal reservations.  They must be so
\napplied as not to exceed the percentage of
\nreservations which is permissible under law.
\nThis can be done by ‘interlocking
\nreservations’.\n<\/p>\n
23.\t\tHis Lordship proceeded to state;
\n\tThere are two types of reservations,
\nwhich may, for the sake of convenience,
\nbe referred to as ‘vertical reservations’
\nand ‘horizontal reservations’. The
\nreservations in favour of Scheduled
\nCastes, Scheduled Tribes and other
\nbackward classes [under Article 16(4)]
\nmay be called vertical reservations
\nwhereas reservations in favour of
\nphysically handicapped [under clause (1)
\nof Article 16] can be referred to as
\nhorizontal reservations. Horizontal
\nreservations cut across the vertical
\nreservations  what is called
\ninterlocking reservations. To be more
\nprecise, suppose 3% of the vacancies are
\nreserved in favour of physically
\nhandicapped persons; this would be a
\nreservation relatable to clause (1) of
\nArticle 16. The persons selected against
\nthis quota will be placed in the
\nappropriate category; if he belongs to SC
\ncategory he will be placed in that quota
\nby making necessary adjustments;
\nsimilarly, if he belongs to open
\ncompetition (OC) category, he will be
\nplaced in that category by making
\nnecessary adjustments. Even after
\nproviding for these horizontal
\nreservations, the percentage of
\nreservations in favour of backward class
\nof citizens remains  and should remain
\nthe same. This is how these reservations
\nare worked out in several States and
\nthere is no reason not to continue that
\nprocedure.   \t(emphasis supplied)<\/p>\n
24.\t\tA similar question came up for
\nconsideration in Swati Gupta.  There, the
\npetitioner appeared in the Combined Pre-Medical
\nTest (CPMT) held by the State.  She was not
\nselected.  She challenged a notification of the
\nState Government on the ground that the
\nreservation was 65% which exceeded 50% and was
\nthus violative of the constitutional guarantee
\nunder Articles 14, 16, 19 and 21 of the
\nConstitution as also the ratio laid down in
\nIndra Sawhney (I).  The Government of U.P.,
\nhowever, issued another notification clarifying
\nits stand on reservations.\n<\/p>\n
25.\t\tIn the amended notification, it was
\nclarified that the reservations for the
\ncandidates belonging to other categories, such
\nas, dependents of freedom-fighters, sons\/
\ndaughters of deceased\/disabled soldiers,
\nphysically handicapped candidates, etc. would
\nbe ‘horizontal’ and the candidates selected in
\nthose categories would be adjusted in the
\ncategories to which they belong, i.e. either
\nreserved category of Schedule Castes (SC),
\nSchedule Tribes (ST), Other Backward Class
\n(OBC) or Open Category (OC) in ‘vertical’
\nreservation and it would not violate
\nconstitutional guarantee.\n<\/p>\n
26.\t\tThe Court considered Indra Sawhney
\n(I), applied it to the case on hand and held
\nthat the submission of the State was well
\nfounded and the contention of the petitioner
\nthat the reservation violated constitutional
\nguarantee of 50% was not well-founded.\n<\/p>\n
27.\t\tThe Court stated;\n<\/p>\n
\tThe vertical reservation is now
\n50% for general category and 50% for
\nScheduled Castes, Scheduled Tribes and
\nBackward Classes. Reservation of 15%
\nfor various categories mentioned in
\nthe earlier circular which reduced the
\ngeneral category to 35% due to
\nvertical reservation has now been made
\nhorizontal in the amended circular
\nextending it to all seats. The
\nreservation is no more in general
\ncategory. The amended circular divides
\nall the seats in CPMT into two
\ncategories one, general and other
\nreserved. Both have been allocated
\n50%. Para 2 of the circular explains
\nthat candidates who are selected on
\nmerit and happen to be of the category
\nmentioned in para 1 would be liable to
\nbe adjusted in general or reserved
\ncategory depending on to which
\ncategory they belong, such reservation
\nis not contrary to what was said by
\nthis Court in Indra Sawhney.\n<\/p>\n
\t\t\t\t(emphasis supplied) <\/p>\n
28.\t\tA similar question was raised in Anil
\nKumar Gupta & Ors. V. State of U.P. & Ors.,
\n(1995) 5 SCC 173 : JT 1995 (5) SC 505.
\nReferring to Indra Sawhney (I), and Swati
\nGupta, the Court observed;\n<\/p>\n
Now, coming to the correctness of
\nthe procedure prescribed by the
\nrevised notification for filling up
\nthe seats, it was wrong to direct the
\nfifteen per cent special reservation
\nseats to be filled up first and then
\ntake up the OC (merit) quota (followed
\nby filling of OBC, SC and ST quotas).
\nThe proper and correct course is to
\nfirst fill up the OC quota (50%) on
\nthe basis of merit; then fill up each
\nof the social reservation quotas,
\ni.e., SC, ST and BC; the third step
\nwould be to find out how many
\ncandidates belonging to special
\nreservations have been selected on the
\nabove basis. If the quota fixed for
\nhorizontal reservations is already
\nsatisfied  in case it is an overall
\nhorizontal reservation  no further
\nquestion arises. But if it is not so
\nsatisfied, the requisite number of
\nspecial reservation candidates shall
\nhave to be taken and adjusted\/
\naccommodated against their respective
\nsocial reservation categories by
\ndeleting the corresponding number of
\ncandidates therefrom. (If, however, it
\nis a case of compartmentalised
\nhorizontal reservation, then the
\nprocess of verification and
\nadjustment\/ accommodation as stated
\nabove should be applied separately to
\neach of the vertical reservations. In
\nsuch a case, the reservation of
\nfifteen per cent in favour of special
\ncategories, overall, may be satisfied
\nor may not be satisfied.) Because the
\nrevised notification provided for a
\ndifferent method of filling the seats,
\nit has contributed partly to the
\nunfortunate situation where the entire
\nspecial reservation quota has been
\nallocated and adjusted almost
\nexclusively against the OC quota.\n<\/p>\n
\t[see also Mahesh Gupta & Ors. V. Yashwank
\nKumar Ahirwar & Ors.,<\/a> (2007) 8 SCC 621 : JT
\n2007 (10) SC 556].\n<\/p>\n
29.\t\tIt is thus clear that the reservation
\nfor women candidates cannot be held invalid or
\nin excess of permissible quota.  In fact,
\nreservation policy itself makes this position
\nclear.  A letter, dated February 26, 1999
\nreferred to above and annexed as Annexure P1 is
\nexplicitly clear.  Para 2 reads thus;
\n\tReservation will be of Horizontal
\nnature i.e. if any Woman candidate
\nselected on the basis of reservation
\non any category then she will be fixed
\nof the said category.\n<\/p>\n
30.\t\tIn the affidavit-in-reply by the
\nUniversity, it was clarified that three posts
\nin the Flexible Cadre Structure (1 General :
\nunreserved + 2 Schedule Caste) were vacant
\nunder the heading ‘Associate Professor\/
\nAssistant Professor’.  Since there was 20%
\nreservation for women and three posts were to
\nbe filled in, it came to 0.6% i.e. more than
\n0.5% and as such one post had to be
\nhorizontally reserved for a woman candidate.
\nAs respondent No. 4 was found eligible and
\nqualified, she was selected and recommended for
\nappointment as Assistant Professor and no
\ngrievance can be raised against such lawful
\naction of the University.\n<\/p>\n
31.\t\tIt is no doubt true that in the High
\nCourt, at one stage, it was contended by the
\nUniversity that respondent No. 4 was found more
\nmeritorious and was preferred to the writ-
\npetitioner though it was neither the assertion
\nof the University at the initial stage nor in
\nthe affidavit-in-reply filed in the High Court.\n<\/p>\n
32.\t\tThe learned counsel for the University
\nstated that the cases of the candidates, i.e.
\nwrit-petitioner and respondent No. 4 were
\ntotally different and distinct. Case of writ-
\npetitioner was considered for the post of
\nAssociate Professor whereas the case of
\nrespondent No. 4 was considered for the post of
\nAssistant Professor.  It was only because there
\nwas Combined Cadre of Associate\/Assistant
\nProfessor that only one of them could be
\nappointed.  And in view of horizontal
\nreservation, it was respondent No. 4 who could
\nbe selected and recommended for appointment as
\nAssistant Professor and writ-petitioner had no
\noccasion to make complaint against such
\nappointment.  The post was of Open Category
\n(OC), i.e. General and respondent No. 4 was
\naccommodated on that post on Open Category in
\nWomen Reservation Quota.\n<\/p>\n
33.\t\tFor completion of record, it may be
\nstated that in 2005, writ-petitioner (Dr. Shiv
\nPrasad) was selected and has joined as
\nAssociate Professor from February 14, 2006
\n(A.N.).\n<\/p>\n
34.\t\tFor the foregoing reasons, in our
\nview, the appeal filed by Dr. Shiv Prasad
\n(Petitioner of Writ Petition No. 802 (S\/B) of
\n2001) deserves to be dismissed and is hereby
\ndismissed.  The appeal filed by Dr. (Mrs.)
\nMadhu Jain (respondent No. 4 in Writ Petition
\nNo. 802 (S\/B) of 2001) deserved to be allowed
\nand is accordingly allowed.  Her selection,
\nrecommendation and appointment as Assistant
\nProfessor is held legal, valid and in
\naccordance with law and could not have been set
\naside by the High Court.  The order of the High
\nCourt to that extent is set aside upholding the
\naction of the University.  On the facts and in
\nthe circumstances of the case, however, all the
\nparties are directed to bear their own costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shiv Prasad vs Government Of India & Ors on 25 April, 2008 Author: C Thakker Bench: C.K. Thakker, D.K. Jain CASE NO.: Appeal (civil) 2979 of 2008 PETITIONER: SHIV PRASAD RESPONDENT: GOVERNMENT OF INDIA & ORS DATE OF JUDGMENT: 25\/04\/2008 BENCH: C.K. THAKKER & D.K. JAIN JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-150555","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShiv Prasad vs Government Of India & Ors on 25 April, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shiv-prasad-vs-government-of-india-ors-on-25-april-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shiv Prasad vs Government Of India & Ors on 25 April, 2008 - 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