PUBLIC SERVICE COMMISSION, UTTARANCHALversusMAMTA BISHT AND ORS.

                    [201 OJ 7 S.C.R. 289


    PUBLIC SERVICE COMMISSION, UTTARANCHAL                    A
                          v.
              MAMTA BISHT AND ORS.
           (Civil Appeal No. 5987 of 2007)
                      JUNE 03, 2010
                                                              B
 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

    Service Law:

                                                              c
      Selection - Of Civil Judge (Junior Division) in the State
of Uttaraf?chal - Reservation policy adopted by the State· -
Vertical reservation [i.e. social reservations in favour of SC,
ST and OBC under Article 16(4)] and horizontal reservation
[i.e. special reservations in favour of physically handicapped,
women, etc., under Articles 16(1) or 15(3)] - Application of 0
horizontal (special) reservation in favour of women -
Discussed - Extent of difference between horizontal (special)
reservation and vertical (social) reservation re-iterated -
Constitution of India , 1950 - Articles 15(3) and 16(4).

     Selection - Select list challenged by unsuccessful E
candidate - Writ petition filed - Held: The writ petition could
not have been entertained by the High Court since the last
selected candidate, -a necessary party, was not impleaded -
                                                      1




Constitution of India, 1950 - Article 226 - Writ petition - Non-
impleadment of necessary party - Code of Civil Procedure, F
1908 - Orcjer I, Rule IX, proviso.

     The Public Service Commission, Uttaranchal issued
advertisement inviting applications for posts of Civil
Judge (Junior Division) with a clarifi(,:ation that the       G
reservation policy adopted by the State of Uttaranchal i.e.
vertical (social) reservation in favour of SC/ST/OBC and
horizontal (special) reservation in favour of handicapped,
women etc. belonging to Uttaranchal ·would be
applicable.
                             289                              H
    290      SUPREME COURT REPORTS            (2010] 7 SC R.


A       Respondent no.1 applied in pursuance of the said
    advertisement seeking benefit of horizontal reservation in
    favour of Uttaranchal women. She qualified in the written
    examination but was not selected in the interview.

        Respondent no.1 filed writ petition challenging the
8
  select list. The High Court allowed the writ petition and
   directed the appellants to appoint respondent no.1 as Civil
   Judge (Junior Division) in the State of Uttaranchal on the
   ground that horizontal reservation is also to be applied
C as vertical reservation in favour of reserved category
   candidates (social). The High Court held that the last
   selected woman candidate who was given the benefit of
   horizontal reservation for Uttaranchal women had
   secured marks higher than the last selected candidate in
   general category; that the said candidate ought to have
D been appointed against the general category vacancy
   and respondent no.1 ought to have been offered the
   appointment giving her the benefit of horizontal
  .reservation for Uttaranchal women.

E      The appellants inter a/ia contended before this Court
  that the writ petition ought to have been dismissed by the
  High Court for not impleading the necessary parties since
  not even a single successful candidate was impleaded as
  a respondent before the High Court. It was further
F contended that the High Court had failed to consider the
  principle that if a reserved category candidate secures
  more marks than the last selected candidate in general
  category, then he is to be appointed against the general
  category vacancy, does not apply while giving the benefit
G of horizontal reservation.

          Allowing the appeals, the Court

      HELD:1. In case respondent no.1 wanted her
  selection against the reserved category vacancy, the last
H selected candidate in that category was a necessary party
 PUBLIC SERVICE COMMISSION, UTTARANCHAL v. 291
           MAMTA BISHT AND ORS.

and withoLft impleading her, the writ petition could not A
have been entertained by the High Court. If a person, who
is likely to suffer from the order of the Court, has not been
impleaded as a party, he has a right to ignore the said
order as it has been passed in violation of the principles
of natural justice. Moreso, proviso to Order I, Rule IX of B
CPC provides that non-joinder of necessary party be
fatal. Though the provisions of CPC are not applicable in
writ jurisdiction by virtue of the provision of Section 141
CPC but the principles enshrined therein are applicable.
[Paras 7 and 8] [297-B-G]                                     c
    Udit Narain Singh Malpaharia v. Additional Member,
Board of Revenue, Bihar & Anr: AIR 1963 SC 786;
Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC
1153; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat
& Ors. AIR 1974 SC 2105; Sarguja Transport Service v. State    D
Transport Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88;
Prabodh Verma & Ors. v. State of UP. & Ors. AIR 1985 SC
167 and Tridip Kumar Dingal & Ors. v. State of West Bengal
& Ors. (2009) 1 SCC 768, relied on.

    Rakhi Ray & Ors. v. The High Court of Delhi & Ors. AIR
2010 SC 932, referred to.

     2. There is a difference between the nature of vertical
reservation [i.e. social reservations in favour of SC, ST F
and OBC under Article 16(4)] and horizontal reservation
[i.e. special reservations in favour of physically
handicapped, women, etc., under Articles 16(1) or 15(3)].
The view taken by the High Court on application of
horizontal reservation is contrary to the law laid down by
this Court. In an earlier case, it has been laid down by this G
Court that where a vertical reservation is made in favour
of a Backward Class under Article 16(4), the ~andidates
belonging to such Backw~rd Class, may compete for
non-reserved posts and if th~y are appointed ~o the non-
                                                              H
    292    SUPREME COURT REPORTS               [2010] 7 S.C.R.


A   reserved posts on their own merit, their number will not
    be counted against the quota reserved for 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
B percentage of posts reserved for SC candidates, it cannot
    be said that 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. But the aforesaid principle applicable to vertical
c (social) reservations will not apply to horizorttal (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
0 the number of candidates among them who belong to the
   special reservation group of "Scheduled Caste 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
E 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
F women selected on merit within the vertical reservation
   quota will be counted against the horizontal reservation
   for women. Sirice the judgment of the High Court is not
   in consonance with law laid down by this Court in the
   said earlier case, it is liable to be set aside and all
G consequential orders become unenforceable and
   inconsequential. [Paras 13, 14] [299-B-H; 300-A-C]

       Rajesh Kumar Daria v. Rajasthan Public Service
    Commission & Ors. AIR 2007 SC 3127, relied on.
H
 PUBLIC SERVICE COMMISSION, UTTARANCHAL v. · 293
           MAMTA BISHT AND ORS.
      Indra Sawhney v. ·Union of India AIR 1993 SC 477,              A
referred to.

                      Case Law Reference:

      AIR 2010 SC 932          referred to            Para 6
                                                                     B
        .
      AIR 1963 SC 786          relied on              Para 7

      AIR 1965 SC 1153         relied on              Para 7

      AIR 1974 SC 2105         relied on              Para 7
                                                                    -'C
      AIR 1987 SC 88           relied on              Para 7

      AIR 1985 SC 167          relied on              Para 8

      (2009) 1 sec 768         relied on              Para 8

      AIR 1993 SC 477          referred to            Para 10        D
      AIR 2007 SC 3127         relied on              Para 13

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5987 of 2007.
                                                                     E
    From. the Judgment & Order dated 26: 10~2005 of the High
Court of Uttaranchal at Nainital in Writ Petition No. 780 of 2003
(M/B).

                             WITH
                                                                     F
C.A. No. 5982 of 2007

      R. Venkataramani~ .$.S. Shamshery (for Jatinder Kumar
Bhatia), A.S. Rawat, Rajiv Kumar Bansal (for Raj Singh Rana),
Ashok K: Mahajan, Mukesh K. Giri for the appearing parties.
                                                                     G
  a   The Judgment of the Court was delivered by

     DR. B. S. CHAUHAN, J. 1. These appeals have been
preferred by the Public Service Commission and the State
Government of Uttaranchal being aggrieved of the judgment and        H
    294     SUPREME COURT REPORTS                  (2010] 7 S.C.R.


A   order of the High Court of Uttaranchal, Nainital dated
    26.10.2005 allowing the Writ Petition No. 780 of 2003 (M/8) and
    directing the present appellants to appoint respondent No.1-
    Ms. Mamta Bisht as Civil Judge, Junior Division in the State
    of Uttaranchal.
B
          2. Facts and circumstances giving rise to these appeals
    are that Public Service Commission, Uttaranchal (hereinafter
    referred to as the 'Commission') issued an advertisement
    dated 7.6.2002 inviting applications for 35 posts of Civil Judge,
C   (Junior Division) with a stipulation that the number of vacancies
    may be increased or decreased. It clarified that the reservation
    policy adopted by the State i.e. reservation ·in favour of SC/ST/
    OBC and horizontal reservation in favour of handicapped, and
    women etc. belonging to Uttaranchal would be applicable. ·
    Respondent No.1 applied in pursuance of the said
D   advertisement seeking benefit of reservation in favour of
    Uttaranchal women. She qualified in the written examination
    and thus faced the interview held by the Commission. The final
    result of the selection was declared on 31.7.2003 and it was
    evident from the result that respondent No.1 was not selected.
E   Instead of filling of 35 vacancies, recommendations to fill up 42
    vacancies were made as the decision had been taken in this
    regard prior to declaration of result. Out of 42 posts, 26 were
    filled up by general category and 16 by reserved category
    candidates. Some women candidates stood selected in
F   general category while others had been given the benefit of
    horizontal reservation being resident of Uttaranchal.
    Respondent No.1, being aggrieved preferred Writ Petition
    No.780 of 2003 (M/B) in the High Court of Uttaranchal seeking
    quashment of select list dated 31.7.2003 mainly on the ground
G   that women candidates belonging to Uttaranchal had secured
    marks making them eligible to be selected in general category
    and had it been done so, respondent No.1 could have been
    selected in reserved category being a woman of Uttaranchal.
    It had also been pleaded in the petition that some of the women
H   candidates who not only claimed the benefit of horizontal
  PUBLIC SERVICE COMMISSION, UTTARANCHAL v. 295
   MAMTA BISHT AND ORS. [DR. B.S. CHAUHAN, J.]

  reservation but have been selected giving the said benefit, did       A
 . not submit their respective certificate of domicile at the time of
   filling up the application forms but they produced the said
   certificate at a later stage and it was accepted. The High Court
   accepted the first submission of respondent No.1 after
   examining the record of selection .and came to the conclusion        B
 .that last selected woman candidate who was given benefit of
   horizontal reservation for Uttaranchal women had secured
   marks higher than the last selected candidate in general
   category. Thus, the said candidate ought to have been
   appointed against the general category vacancy and                   c
   respondent No.1 ought to have been offered the appointment
   giving her the benefit of horizontal reservation for Uttaranchal
· women. Hence, these appeals.

      3. Shri S.S. Shamshery, Advocate appearing for the
 Commission and Shri Ashok Mahajan, Advocate appearing for D
 the High Court have submitted that all the vacancies advertised
 had already been filled up before the writ petition could be filed.
 Not a single successful candidate had been impleaded as a
 respondent before the High Court. Thus, the petition ought to
 have been dismissed for not impleading the necessary parties. E
 The High Court did not consider the issue of acceptance of
 domicile certificates by the Uttaranchal women at a belated
 stage nor any finding has been recorded on the said issue. The
 High Court failed to consider the principle that if a reserved
 category candidate secures more marks than the last selected F
 candidate in general category, then he is to be appointed
 against the general category vacancy, does not apply while
 giving the benefit of horizontal reservation. The writ petition filed ·
 by the respondent did not have any factual foundation or proper
 pleadings and thus was not worth entertaining. It is well neigh G
 impossible to implement the judgment of the High Court at this
 belated stage, for the reasons that all the vacancies advertised
 stood filled up in 2003. Subsequent to the selection involved
 herein appointments have been made several times. Judicial
 Officers appointed from the said selection have been promoted H
    296     SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A as Civil Judge (Senior Division). Respondent No.1 cannot be
  given seniority over and above the officers appointed in
  subsequent selections. Thus, appeals deserve to be allowed.

       4. On the contrary, Shri R. Venkataramani, learned senior
8 counsel    appearing for respondent No.1 has vehemently
  opposed the appeals contending that great injustice has been
  done to respondent No.1. She has succeeded before the High
  Court on the sole ground that the last selected candidate
  receiving the benefit of horizontal reservation in favour of
C Uttaranchal women could be appointed against the general
  category vacancy and the respondent No.1 ought to have been
  selected giving her the benefit of horizontal resei;vation in favour
  of Uttaranchal women. There are still some vacancies from the
  said selection as two successful candidates have resigned
  after joining. Thus, respondent No.1 can be adjusted against
D one of such vacancies. Respondent No.1 has been issued
  appointment letter dated 17.5.2010 in pursuance of the
  impugned judgment, but has not yet been given posting by the
  High Court. Thus, she could not j6in the service. Thus, the
  appeals are liable to be dismissed.
E
         5. We have considered the rival submissions made by
    learned counsel for the parties and perused the record.

      6. It is settled legal proposition that vacancies over and
F above the number of vacancies advertised cannot be filled up.
  Once all the vacancies are filled up, the selection process
  comes to an end. In case a selected candidate after joining
    resigns or dies, the vacancy, so occurred cannot be filled up
    from the panel, which stood already exhausted. (Vide Rakhi
    Ray & Ors. Vs. The High Court of Delhi & Ors. AIR 2010 SC
G 932).

          However, in the instant case, the advertisement itself made
    it clear that the vacancies could be increased and decreased
    and before completion of the selection process, a decision had
H
 PUBLIC SERVICE COMMISSION, UTTARANCHAL v. 297
 MAMTA BISHT AND ORS. [DR. B.S. CHAUHAN, J.]

been taken to fill up 42 instead of 35 vacancies and reservation   A
policy had been implemented accordingly.

      7. In case the respondent No.1 wanted h~r selection
against the reserved category vacancy, the last selected
candidate in that cat~gory was a necessary party and without 8
impleading h~r. the writ petition could not have been entertained
by the High Court in vi~w of the law laid down by nearly a
Constitution Bench of this Court in Udit Narain Singh
Malpaharia Vs. Additional Member, Board of Revenue, Bihar
&Anr., AIR 1963 SC 786, wherein the Court has explained the C
distinction between necessary party, proper party and proforma
party and further held that if a person who is likely to suffer from
the order of the Court and has not been impleaded as a party
has a right to ignore the said order as it has been passed in
violation of the principles of natural justice. More so, proviso to D
Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter
called CPC) provide that non-joinder of necessary party be fatal.
Undoubtedly, provisions of CPC are not applicable in writ
jurisdiction by virtue of the provision of Section 141 CPC but
the principles enshrined therein are applicable. (Vide
Gulabchand Chhotalal Parikh Vs. State of Gujarat; AIR 1965 E
SC 1153; Babubhai Muljibhai Patel Vs. Nandlal, Khodidas
Barat & Ors., AIR 1974 SC 2105; and Sarguja Transport
Service Vs. State Transport Appellate Tribunal, Gwalior &
Ors. AIR 1987 SC 88).
                                                                   F
     8. In Prabodh Verma & Ors. Vs. State of U.P. & Ors. AIR
1985 SC 167; and Tridip Kumar Dingal & Ors. Vs. State of
West Bengal & Ors. (2009) 1 SCC 768), It has been held that
if"a person challenges the selection process, successful
candidates or at least some of them are necessary parties.   G

     9. All the 42 vacancies had been filled up, implementing
the reservation policy. All the women candidates selected from
reserved category indisputably belong to Uttaranchal and none
of them is from another State.
                                                                   H
    298       SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A         10. The High Court decided the case on the sole ground
    that as the last selected candidate, receiving the benefit of
    horizontal reservation had secured marks more than the last
    selected general category candidate, she ought to have been
    appointed against the vacancy in general category in view of
B   the judgment of this Court in Indra Sawhney Vs. Union of India,
    AIR 1993 SC 477, and the Division Bench judgment of High
    Court of Uttaranchal in Writ Petition No.816/2002 (M/B) (Km.
    Sikha Agarwal Vs. State of Uttarancha/ & Ors.) decided on
    16.4.2003, and respondent no.1 ought to have appointed giving
c   benefit of reservation thus, allowed the writ petition filed by
    respondent No.1.

         11. In fact, the High Court allowed the writ petition only on
    the ground that the horizontal reservation is also to be applied
    as vertical reservation in favour of reserved category candidates
0   (social) as it held as under:

                "In view of above, Neetu Joshi (Sl.No.9, Roll
          No.12320) has wrongly been counted by the respondent
          No.3/Commission against five seats reserved for
E         Uttaranchal Women General Category as she has
          competed on her own merit as general candidate and as
          5th candidate the petitioner should have been counted for
          Uttaranchal Women General Category seats."

F        12. Admittedly, the said Neetu Joshi has not been
    impleaded as a respondent. It has been stated at the Bar that
    an application for impleadment had been filed but there is
    nothing on record to show that the said application had ever
    been allowed. Attempt had been made to implead some
G   successful candidates before this Court but those applications
    stood rejected by this Court.

         13. The view taken by the High Court on application of
    horizontal reservation is contrary to the law laid down by this
    Court in Rajesh Kumar Daria ~s. Rajasthan Public Service
H
PUBLIC SERVICE COMMISSION, UTTARANCHAL v. 299
 MAMTA BISHT AND ORS. [DR. B.S. CHAUHAN, J.]
Commission & Ors. AIR 2007 SC 3127, wherein dealing with                A
a similar issue this Court held as under:

    "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              B
    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         C
    Backward Class, may compete for non-reserved posts and
    if they are appointed to the non-reserved posts on their                .1
    own merit, their number will not be counted against the
    quota reserved for respective Backward Class. Therefore,
    if the number of SC candidates, who by their own merit,
    get selected to open competition vacancies, equals or               D
    even exceeds the percentage of posts reserved for SC
    candidates, it cannot be said that 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 Indra Sawhney, R.K.                E
    Sabharwal v. State of Punjab, Union of India v. Virpal
    Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul.) But
    the aforesaid principle applicable to vertical (social)
    reservations will not apply to horizontal (special)
    reservations. Where a special reservation for WQJTien is            F
    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 g_roup of "Scheduled Caste women''.            G
     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             H
    300 ·    SUPREME COURT REPORTS                  (201 O] 7 ·S'.C.R.


A       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
s       _horizontal reservation for women." (Emphasis added)

       14. In view of the above, it is evident that the judgment and
  order of the High Court is not in consonance with law laid down
  by this Court in Rajesh Kumar Daria (supra). The judgment and
C order impugned herein is liable to be set aside and all
  consequential orders become unenforceable and
  inconsequential.

        Thus, appeals succeed and are allowed. Judgment and
  order of the High Court dated 26.10.2005 passed in Writ
D Petition no.780/2003 (MIS) is hereby set aside. No costs.

    B.B.B.                                        Appeals allowed.