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How the Supreme Court Blocked Attempts to Dilute Merit Under the Open Category

In Saurav Yadav v State of Uttar Pradesh, the apex court’s three-judge bench explained how merit is served by permitting candidates belonging to reserved categories compete with ‘general’ candidates.

Last Friday’s judgment by a three-judge bench of the Supreme Court in Saurav Yadav v State of Uttar Pradesh is a significant addition to the discourse on reservations.

Those who oppose reservations of any kind are inclined to find merit in the argument that reservations per se are opposed to merit, and therefore, likely to compromise efficiency in public service. Therefore, the critics of reservation are likely to endorse the view that the open category, which is free of reservation of any kind, must be available only to candidates who are not the beneficiaries of any reservations, so that merit is accommodated to the extent possible.

Underlying this reasoning is the assumption that reservation and merit are incompatible in principle. In Saurav Yadav, the Supreme Court explains how erroneous this assumption is, in a nuanced way. It does so while setting aside two high court judgments, which supported the view that vacancies under open category (OC) must be filled up only by candidates belonging to the open category. In other words, it rejected the unstated assumption that the open category is ‘reserved’ for those who are not entitled to reservations for SCs, STs and OBCs.

In Saurav Yadav, the court reiterates its previously held view that candidates belonging to reserved categories like SCs, STs, and OBCs can be appointed under open or general category, if they qualified on their own merit, so that they are not counted under the reserved category. However, it found that there was disagreement among the high courts on applying this principle while filling the quota under horizontal reservations meant for women, physically-handicapped persons, dependants of freedom fighters and ex-servicemen. The bench comprising Justices Uday Umesh Lalit, S. Ravindra Bhat and Hrishikesh Roy resolves this disagreement in two concurring judgments, one authored by Justice Lalit and the other by Justice Bhat.

Horizontal & vertical reservations

Horizontal reservations cut across the vertical reservations – the Supreme Court called it as “interlocking reservations” in Indra Sawhney and Others v Union of India (1992). To be more precise, suppose three per cent of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. Social reservations in favour of SCs, STs and OBCs under Article 16(4) are “vertical reservations”.  Special reservations in favour of physically handicapped, women (under Article 15(3)) etc., are “horizontal reservations”.

Also read: It’s Time to Defang ‘Meritocracy’, an Argument That Claims Lives

Where a vertical reservation is made in favour of a backward class under Article 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their number will not be counted against the quota reserved for respective backward class. The Supreme Court had ruled in Indra Sawhney that the entire reservation quota will be intact and available in addition to those selected under open competition category.

The persons selected against the horizontal 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. The Supreme Court had made it clear in Indra Sawhney that even after providing for these horizontal reservations, the percentage of reservations in favour backward class of citizens remains – and should remain – the same.

In a subsequent case, the Supreme Court further clarified the issue thus: For example, if there are 200 vacancies and 15% is the vertical reservation for SCs and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SCs should be: “For SC: 30 posts, of which nine posts (30 per cent of 30) are for women”.

If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidates on the ground that the SC women have been selected in excess of the prescribed internal quota of four.

How the high courts disagreed

Rajasthan, Bombay, Uttarakhand and Gujarat high courts had adopted this principle while dealing with horizontal reservation.  That is, these high courts held that candidates belonging to reserved categories can be considered to fill horizontal quota under open category on their own merit. The high courts of Allahabad and Madhya Pradesh, on the contrary, held that candidates from reserved categories can be adjusted only against their own categories under the concerned vertical reservation and not against the ‘open or general category’.

The Lalit-Bhat-Roy bench observed that there can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved candidates and in theory, it is possible that a more meritorious candidate coming from Open/General category may not get selected.

Also read: Does ‘Merit’ Have a Caste?

But the converse can never be true, and will be opposed to the very basic principles which have all the while been accepted by the apex court, the bench held.   Thus all women, irrespective of whether they belong, or do not belong, to the reserved category are entitled to compete for posts earmarked in favour of women under the open category, it reiterated.

There is no reservation for posts in the open/general category, and horizontal reservation in favour of women in the general category is available to be filled up from amongst all women irrespective of their caste status, the bench held.

“Holding otherwise, would result in surreptitious introduction of reservation in favour of those who do not belong to the socially and educationally backward classes, and a disguised attempt at communal reservation which was frowned upon by the Supreme Court in 1951 in the State of Madras v Smt.Champakam Dorairajan”, the bench cited a recent Gujarat high court ruling approvingly.

The Uttar Pradesh case

In the instant case, two candidates, one belonging to the OBC-Female and another belonging to the SC-Female participated in the selection process in 2013 for filling up posts of constables in Uttar Pradesh police. Their grievance was that candidates with marks lower than what they secured had been selected in General Female category disregarding their claim.

The state has horizontal reservations for women candidates, and the state had submitted that it would not be possible to carry forward the vacancies under horizontal reservation to the next selection, in case the appropriate number of candidates for horizontal reservation were not available. The Allahabad high court had accepted this plea.

The cut-off marks for eligible female (general category) was 274.8928. While all male candidates belonging to OBC, SC, ST category securing more than the cut-off marks (313.616) for the male candidates in the general/open/unreserved category were selected, the same standard was not applied to the OBC or SC or ST women category candidates, although they had obtained more than the cut-off marks for the female candidates in the general or open or unreserved category.

The bench rejected the views of Allahabad and Madhya Pradesh high courts, and described the view adopted by the high courts of Rajasthan, Bombay, Uttarakhand and Gujarat as correct and rational. The bench held that if the appellant and the similarly situated candidates had secured more marks than the last candidates selected in open or general category, the logical consequence must be to annul the selection, and directed the authorities to do the selection de novo in the light of its conclusion.

Also read: The Law is Clear: Reserved Category Candidates Are Entitled to General Seats on the Basis of Merit

The bench directed that all candidates belonging to the OBC female category who had secured more marks than 274.8928, that is, the marks secured by the last candidate appointed in ‘General Category-Female’ must be offered employment as constables in Uttar Pradesh police. Since none of the candidates belonging to SC female category had secured more marks than 274.8298, the bench rejected their claims.

Justice S. Ravindra Bhat’s judgment

In his separate judgment, Justice Bhat agreed with Justice Lalit’s main judgment which the latter authored on behalf of the bench, and added a few reasons of his own, which are not opposed to that of Justice Lalit.

In 1999, the Uttar Pradesh government issued a government order providing 20% reservation for women on the process of direct recruitment to state public services and posts subject to certain conditions. One such condition is that if a woman is selected on the basis of merit in any state public service and post, her selection will be against the vacancy reserved for women in that category.

Another condition is that if a suitable women candidate is not available for the post reserved for women, then such a post shall be filled up from amongst a suitable male candidate and such a post shall not be carried forward for future.

Justice Bhat noted that the only stipulation with respect to the treatment of horizontal reservation for women, is that in case a woman candidate is selected, she would be adjusted against the appropriate social category she belongs to (SC/ST/OBC/OC). However, there is no rule, or direction which prohibits the adjustment of socially reserved categories of women in the general category or “open category”, he held.

The features of vertical reservations, according to Justice Bhat, are:

(i) They cannot be filled by the open category, or categories of candidates other than those specified and have to be filled by candidates of the concerned social category only (SC/ST/OBC);

(ii) Mobility (‘migration’) from the reserved (specified category) to the unreserved (open category) slot is possible, based on meritorious performance;

(iii) In case of migration from reserved to open category, the vacancy in the reserved category should be filled by another person from the same specified category, lower in rank;

(iv) If the vacancies cannot be filled by the specified categories due to shortfall of candidates, the vacancies are to be ‘carried forward’ or dealt with appropriately by rules.

Horizontal reservations on the other hand, by their nature, Justice Bhat clarified, are not inviolate pools or carved in stone.  They are premised on their overlaps and are ‘interlocking’ reservations. They cannot be carried forward.

Also read: Explainer: Significance of the Supreme Court’s Nod to Reservation in Promotions

The first rule that applies to filling horizontal reservation quotas is one of adjustment, i.e. examining whether on merit any of the horizontal categories are adjusted in the merit list in the open category, and then, in the quota for such horizontal category within the particular specified/social reservation.

The open category is not a ‘quota’, but rather available to all women and men alike. Criticising the Allahabad and Madhya Pradesh high court judgments, Justice Bhat explains that if they are upheld, the result would be confining the number of women candidates, irrespective of their performance, in their social reservation categories and therefore, destructive of logic and merit.

The two high courts’ view, therefore – perhaps unconsciously supports- but definitely results in confining the number of women in the select list to the overall numerical quota assured by the rule, Justice Bhat observed. In his view,  when more than the stipulated percentage 20 per cent (say, 40 or 50 per cent) of women candidates figure in the most meritorious category, the conclusion of these two high courts would result in injustice, as it would penalise merit.

In view of apex court’s clear decisions, Justice Bhat held that it is too late in the day for the Uttar Pradesh government to contend that women candidates who are entitled to benefit of social category reservations, cannot fill open category vacancies. “The said view is starkly exposed as misconceived, because it would result in such women candidates with less merit (in the open category) being selected, and those with more merit than such selected candidates, (in the social/vertical reservation category) being left out of selection,” Justice Bhat held.

Justice Bhat concluded that reservations, both vertical and horizontal, are methods of ensuring representation in public services. “These are not to be seen as rigid “slots”, where a candidate’s merit, which otherwise entitles her to be shown in the open general category, is foreclosed, as the consequence would be, if the state’s argument is accepted. Doing so, would result in a communal reservation, where each social category is confined within the extent of their reservation, thus negating merit. The open category is open to all, and the only condition for a candidate to be shown in it is merit, regardless of whether reservation benefit of either type is available to her or him,” he held.