(Uday Umesh Lalit and Vineet Saran, JJ.)
IA 103934/2018, 116669/2018, 116671/2018, 121048/2018, 122163/2018, 122485/2018, 124134/2018, 127694/2018, 127713/2018, 134551/2018, 145821/2018, 14 7494/2018, 159019/2018, 163643/2018, 19030/2019, in Petition(s) for Special Leave to Appeal (C) No(s). 20015/2018+, decided on July 24, 2019
Ashish Kumar Yadav and Others ____________________ Petitioner(s);
v.
State of Uttar Pradesh and Others ___________________ Respondent(s).
IA No. 19030/2019 – Appropriate Orders/Directions IA No. 116669/2018 – Clarification/Direction IA No. 103934/2018 – Exemption From Filing O.T. IA No. 116671/2018 – Exemption From Filing O.T. IA No. 134551/2018 – Intervention/Impleadment IA No. 127713/2018 – Intervention/Impleadment IA No. 127694/2018 – Intervention/Impleadment IA No. 124134/2018 – Intervention/Impleadment IA No. 122485/2018 – Intervention/Impleadment IA No. 163643/2018 – Intervention/Impleadment IA No. 122163/2018 – Intervention/Impleadment IA No. 159019/2018 – Intervention/Impleadment IA No. 121048/2018 – Intervention/Impleadment IA No. 147494/2018 – Intervention/Impleadment IA No. 145821/2018 – Intervention/Impleadment) With SLP(C) No. 23223/2018 (XI) (121759/2018 Intervention/Impleadment 127686/2018 Intervention/Impleadment 134604/2018 Permission to File Additional Documents/Facts 134605/2018 Exemption From Filing O.T. 143780/2018 Intervention/Impleadment IA No. 117317/2018 – Exemption From Filing O.T. IA No. 134605/2018 – Exemption From Filing O.T. IA No. 121759/2018 – Intervention/Impleadment IA No. 143780/2018 – Intervention/Impleadment IA No. 127686/2018 – Intervention/Impleadment IA No. 134604/2018 – Permission to File Additional Documents/Facts/Annexures) Conmt. Pet.(C) No. 2205/2018 (XI) IA No. 69924/2019 – Clarification/Direction IA No. 45981/2019 – Clarification/Direction) MA 721/2019 in C.A. No. 11370/2018 (III-A) (For Admission and IA No. 54688/2019-Appropriate Orders/Directions) MA 720/2019 in C.A. No. 11373/2018 (III-A) (For Admission and IA No. 55477/2019-Exemption From Filing O.T. and IA No. 55474/2019-Clarification/Direction) MA 711/2019 in T.C.(C) No. 283/2017 (XVI-A) IA No. 56519/2019 – Appropriate Orders/Directions IA No. 56521/2019 – Exemption From Filing O.T.) IA 103934/2018, 116669/2018, 116671/2018, 121048/2018, 122163/2018, 122485/2018, 124134/2018, 127694/2018, 127713/2018, 134551/2018, 145821/2018, 14 7494/2018, 159019/2018, 163643/2018, 19030/2019, in Petition(s) for Special Leave to Appeal (C) No(s). 20015/2018; WA No. 21084/2017; IA No. 19030/2019; IA No. 116669/2018; IA No. 103934/2018; IA No. 116671/2018; IA No. 134551/2018; IA No. 127713/2018; IA No. 127694/2018; IA No. 124134/2018; IA No. 122485/2018; IA No. 163643/2018; IA No. 122163/2018; IA No. 159019/2018; IA No. 121048/2018; IA No. 147494/2018; IA No. 145821/2018; SLP(C) No. 23223/2018 (XI); 121759/2018; 127686/2018; 134604/2018; 134605/2018; 143780/2018; IA No. 117317/2018; IA No. 134605/2018; IA No. 121759/2018; IA No. 143780/2018; IA No. 127686/2018; IA No. 134604/2018; Conmt. Pet.(C) No. 2205/2018 (XI); IA No. 69924/2019; IA No. 45981/2019; MA 721/2019; C.A. No. 11370/2018 (III-A); IA No. 54688/2019; MA 720/2019; C.A. No. 11373/2018 (III-A); IA No. 55477/2019; IA No. 55474/2019; MA 711/2019; T.C.(C) No. 283/2017 (XVI-A); IA No. 56519/2019; and IA No. 56521/2019
The Order of the court was delivered by
Order
1. Heard Ms. Vibha Dutta Makhija and Ms. V. Mohana, learned senior advocates for petitioners and Mr. Vinod Diwakar, learned Advocate for the State.
2. In the year 2013, selection process was undertaken to fill up 41,610 posts of Police Constables [U.P. Civil Police/Provincial Armed Constabulary (PAC)/Fireman]). After the requisite examination, results were declared on 16.07.2015, in which 38315 candidates were successful. Thus, as on that date there were 3295 vacancies which were not filled as no suitable candidates were available.
3. It must be mentioned that the process for selecting Sub-Inspectors in U.P. Police was going on simultaneously and in a challenge raised in respect of said process, the High Court of Judicature at Allahabad vide its order dated 29.05.2015 in Saket Kumar v. State of U.P.1 directed that the candidates who had used blades and whiteners while answering the answer papers of the main examination were disqualified and their names be deleted from the selection list.
4. The matter was carried in appeal before this Court and by its decision dated 19.01.2016 (Hanuman Dutt Shukla v. State of U.P.2), it was ruled that those who had used blades and whiteners ought not to have been disqualified. However, by that time, the process of selection had gone ahead with re-working of the seniority list in terms of the order passed in Saket Kumar1, This Court, therefore, observed that those candidatures who were selected as a result of directions in Saket Kumar1 should not be thrown out from the process of selection but the candidates who had used the blades and whiteners should be given the advantage or benefit in a notional selection. In other words, the selection list was ordered to be re-worked and in case the candidates who had used blades and whiteners were now found to be part of the selection list, they be given appropriate advantage including selection to the posts in question. It was also directed that though logically equal number of candidates must be displaced from the original list of selection, since those persons had already undergone training and some of them had joined the posts, those candidates ought not to be thrown out of service. This Court also directed that in the process, the additional number of candidates who were selected over and above the normal selection should be reckoned as against additional posts and should not be taken to be part of the original posts for selection.
5. The principle so devised in Hanuman Dutt Shukla2 was then adopted in the process of selection for Police Constables which was going on simultaneously and consequently the selection list was reworked. Thus all the candidates who had used blades and whiteners were considered in the process of selection and some of them did get selected. In the re-working of the selection list 4429 candidates were given advantage or benefit in terms of the law declared in Hanuman Dutt Shukla2 which is to say those 4429 candidates would be taken as additional appointments over and above number of posts for which selection was undertaken.
6. In its judgment dated 16.03.2016 [Ashish Kumar Pandey v. State of U.P.3], the High Court of Judicature at Allahabad observed that horizontal reservation was not properly worked and as such the State was directed to undertake the process of re-calculating horizontal reservation vacancies afresh. This case was also in relation to the process of selection for Sub-inspectors. Around same time, another decision was rendered by the High Court in Manoj Kumar4 adopting the principle in Ashish Kumar Pandey3 in selection process for Constables.
7. On 4.5.2018, a decision was rendered by the High Court of Judicature at Allahabad in Upendra v. State of U.P.5 wherein challenge was raised to certain provisions of the Reservation Act. It was submitted that going by the concept of horizontal reservation, it would not be possible to carry forward the vacancies to the next selection, in case the appropriate number of candidates for horizontal reservation were not available. The High Court accepted the plea and directed that there shall not be any carry-forward of vacancies of horizontal reservation to the next selection.
8. Thus the matter was clear that in case appropriate number of candidates for filling up seats meant for horizontal reservation were not available, there would not be any carry fortward of such vacancies. The order shows that about 2312 vacancies were not filled up by the State adopting the idea of carry forward principle in horizontal reservation. Therefore, as a result of the directions issued by the High Court in Upendra case5, 2312 vacancies must enure to the advantage of the candidates concerning the present selection process itself.
9. It is accepted by the learned counsel for the State that the State did not undertake any process of selection in respect of those 2312 vacancies. In the circumstances it is directed:
(A) The State shall within a month from today complete the entire process of selection in respect of 2312 vacancies strictly in accordance with law.
(B) The State shall follow the principle of reservation while filling up these 2312 vacancies.
(C) While filling up these vacancies, the State shall adhere to the minimum required qualifying marks as devised during the process of selection but subject to this, the State shall consider all eligible candidates and go strictly in order of merit.
(D) The State shall before the next date of hearing, shall file a list of all the selected candidates.
10. It is also accepted that apart from these 2312 vacancies, there are still 982 vacancies to be filled up in the original selection.
11. It is clarified that no candidate shall be excluded from the selection process merely because he had used blade or whitener. In case his merit position otherwise demands and entitles him to be selected, no prejudice shall be caused to him merely for the use of blade and whitener.
12. It is also clarified that in case any other process of selection is going ahead, the same shall not be kept in abeyance and the State is entitled to go ahead with such process.
13. List on 14.10.2019.
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+ Arising from final Judgment and Order in Yadav Dharmendra Pratap v. State of U.P., 2018 SCC OnLine All ## (Allahabad High Court, Writ-A No. 11729 of 2018, dt. 16-5-2018)
1 2015 SCC OnLine All 1250
2 (2018) 16 SCC 447 : (2019) 1 SCC (L&S) 251
3 2016 SCC OnLine All 187
4 Manoj Kumar v. State of U.P., 2017 SCC OnLine All 2759
5 Writ-C No. 3417 of 2016, order dated 4-5-2018 (All)
