Sl.No,Name,Roll No.,Category Quota,"Marks in
Written Exam
…………
Total 100 marks","Marks in
Viva Voce
…..…..
Total 15 marks","Total marks
obtained
,,,,,,
,,,,,,
1.,Mrinal Pathak,CD-5,"OBC
Treated as
General
 andidate",64,12.3,76.3
,,,,,,
2.,Diganta Sarma,CD-16,General,63,10.5,73.5
3.,Raju Chaliha,CD-17,OBC,56,9.7,65.7
4.,L Kiran K Sinha,CD-8,OBC,51,10.3,61.3
5.,Chaitali Sidhanta,CD-9,General,60,8.8.,68.8
all appointments to the services and posts in the establishment which are to be filled up by direct recruitment has to be reserved for women,,,,,,
candidates. Therefore, out of five posts of Assistant Deputy Controller of Civil Defence (Junior) advertised, at least one post is to be reserved for",,,,,,
women candidates. Considering the marks of the petitioner, the respondent authorities by applying the Women’s Reservation Act ought to have",,,,,,
selected and appointed the petitioner.,,,,,,
9. Mr. CP Sharma further submits that there are two types of reservation i.e. vertical reservation and horizontal reservation. The reservation in favour,,,,,,
of the SC, ST and OBC are reservation under Article 16(4) of the Constitution and they are identified as vertical reservation whereas, reservation in",,,,,,
favour of physically handicapped, women reservation etc. are reservation under Clause (1) of Article 16 of the Constitution and they are identified as",,,,,,
horizontal reservation. Horizontal reservation cut across the vertical reservation which is in fact termed as interlocking reservation. By applying the,,,,,,
Women’s Reservation Act, out of four posts that were filled up, barring one post reserved for ST(P) which remained unfilled for want of",,,,,,
applicants, the respondent authorities ought to have selected the petitioner and appointed her against the unreserved category, she being a woman",,,,,,
candidate and in fact, the only woman candidate. He submits that women’s reservation being horizontal reservation, it will cut across the vertical",,,,,,
reservation. In support of his submission on horizontal and vertical reservation, Mr. CP Sharma relies upon the following judicial pronouncements:-",,,,,,
(i) Union of India & Anr. Vs. Satya Prakash & Ors. (2006)4 SCC 550,,,,,,
(ii) Ratul Kumar Das & Ors. Vs. State of Assam & Ors. 2009(4) GLT 648,,,,,,
(iii) Shiv Prasad Vs. Government of India; (2008)6 SCC 382,,,,,,
11. Mr. CP Sharma submits that the stand of the respondent authorities in their affidavit dated 11.12.2014 with regard to rounding off a figure is,,,,,,
incorrect and only misconceived. He submits that according to the respondent authorities, since there were only two posts reserved for the general",,,,,,
candidates and considering the percentage of reservation for women candidates, 30% of two posts will be 0.6 posts and therefore, the same not being",,,,,,
a whole number, it was not possible to make any reservation for women candidates. Mr. CP Sharma submits that in fact by following the general",,,,,,
principles for rounding off a figure, 0.6 posts will have to be rounded off as one post if the figure is one half or more. In case the figure is less than one",,,,,,
half, the value will have to be ignored and in which case, there cannot be any reservation. The respondent authorities themselves having contended",,,,,,
that 0.6 post could be reserved for women candidates, the same has only to be rounded off to one post and if one post is reserved for women",,,,,,
candidate, the petitioner should have been selected and appointed to the post in question. In support of his submission with regard to rounding of a",,,,,,
figure, Mr. CP Sharma has relied upon the following two decisions:-",,,,,,
(i) Monoj Kumar Roy Vs. State of Assam & Ors. 1998(2) GLT 421,,,,,,
(ii) State of U.P. & Anr. Vs. Pawan Kumar Tiwari & Ors. (2005)2 SCC 10.,,,,,,
12. Mr. N Goswami, learned counsel appearing for the State respondents submits that the respondent authorities have not committed any mistake in",,,,,,
not selecting the petitioner inasmuch as there were candidates who scored higher than the petitioner in the general category. He submits that,,,,,,
considering the fact that there were only two posts reserved for general category, selection and appointment of the petitioner would amount to",,,,,,
exceeding 50% of the posts being filled up by reserved category. He submits that the Apex Court in the case of Indra Sawny (1) Vs. Union of India,,,,,,
reported in 1992 Suppl (3) SCC 217 has clearly laid down that reservation cannot exceed 50% of the posts to be filled up. He therefore submits that,,,,,,
there is no merit in the writ petition and the same should be dismissed.,,,,,,
13. I have heard the submissions advanced by the learned counsels for the parties and perused the materials available on record. The question to be,,,,,,
decided is as to whether the respondent authorities have committed a mistake in not making reservation for women candidates for the posts in,,,,,,
question. Whether 30% women’s reservation can be implemented against the five posts that were advertized to be filled up by direct recruitment.,,,,,,
14. The State Government in exercise of the power conferred by Section 11 (1) of the Women’s Reservation Act framed the Assam Women,,,,,,
(Reservation of Vacancies in Services and Posts) Rules, 2005 (Women’s Reservation Rules). The Women’s Reservation Rules came into",,,,,,
force w.e.f. 30.11.2005. Rule 3 provides for the procedure to be followed in making a direct recruitment through the Assam Public Service,,,,,,
Commission or Section Committee/Board. Rule 3(3) provides that the appointing authority shall make the appointment of women candidates on 30%,,,,,,
basis as shown in the Schedule of the Rules. The Schedule provides for breakup of percentage of 30% reservation in respect of appointment to the,,,,,,
services and posts by direct recruitment for women candidates. Section 4 of the Women’s Reservation Act provides for reservation for women in,,,,,,
vacancies to be filled up by direct recruitment. The same may be reproduced for better appreciation as below:-,,,,,,
“4. At the commencement of this Act, 30 percent of the vacancies in respect of all appointments to the services and posts in the establishment",,,,,,
which are to be filled up by direct recruitment shall be reserved for the women candidates : Provided that the aforesaid reservation shall be inclusive,,,,,,
of the reservation provided statutorily or otherwise to the Scheduled Castes, Scheduled Tribes (Plains), Scheduled Tribes (Hills). Other Backward",,,,,,
Classes. More Other Backward Classes and persons with disabilities within the respective reserved category :Provided further that 30 percent,,,,,,
reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of,,,,,,
unreserved category onlyâ€.,,,,,,
15. The Apex Court in Shiv Prasad (Supra) by examining the law laid down by the Court itself in various other cases held that the reservation for,,,,,,
women reservation for women candidates cannot be held invalid or in excess of permissible quota and that in fact, reservation policy itself makes this",,,,,,
position clear. Paragraph Nos. 24 to 29 may be gainfully quoted as below:-,,,,,,
“24. 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.,,,,,,
25. 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'. 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.â€,,,,,,
26. A similar question came up for consideration in Swati Gupta. 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 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.",,,,,,
27. 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.",,,,,,
28. 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. “3….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. “",,,,,,
29. A similar question was raised in Anil Kumar Gupta & Ors. V. State of U.P. & Ors., Referring to Indra Sawhney (I), and Swati Gupta, 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.â€,,,,,,
16. In the present case, considering the five posts that were advertised, reservation for women candidate ought to have been done by the respondent",,,,,,
authorities. Women reservation admittedly is horizontal reservation and by applying the interlocking reservation, if women candidates were found to be",,,,,,
unrepresented, one woman candidate ought to have been adjusted. The petitioner belongs to the general category and accordingly, she will have to be",,,,,,
placed in the general category and against the quota earmarked for general category. If there are no women candidates, she will have to be adjusted",,,,,,
against the last person selected on merit. As may be noticed, this in fact was the Apex Court held in the case of Shiv Prasad (supra) as well as in the",,,,,,
case of Satya Prakash & Ors (supra). A Division Bench of this Court in the case of Ratul Kumar Das & Ors (supra) following the law laid down by,,,,,,
the Apex Court held that if there is a short fall of women candidates in order of merit, the last male candidate is to be replaced by a woman candidate",,,,,,
in order to give effect to 30% reservation of post for women candidates. On the other hand, if there already exist a woman candidate in the category",,,,,,
concerned and if there is no short fall in the 30% of posts reserved for women candidates, there will be no question for making further adjustments",,,,,,
beyond the percentage prescribed.,,,,,,
17. It may also be noticed that respondent No. 5 who is also a general category candidate scoring of 73.5 marks in total was above the petitioner.,,,,,,
However, against the two posts reserved for general category, since one post was already taken by the respondent No.4 an OBC category candidate",,,,,,
who scored the highest marks and treated as a general candidate, the petitioner in view of the principle of interlocking reservation will have to replace",,,,,,
the respondent No.5 in the select list. In short, she will have to be adjusted against the last person selected in the general category on merit. In view of",,,,,,
such finding, reference to the other authorities relied upon by the parties is found unnecessary.",,,,,,
18. This Court vide order dated 17.10.2014 while issuing notice had observed that the appointment of the private respondents based on the selection,,,,,,
held would be subject to the outcome of the writ petition. The private respondents despite service of notice have not appeared in the case. Considering,,,,,,
the law laid down by the Apex Court as well as Division Bench of this Court, the respondent authorities have clearly failed to apply the provision of",,,,,,
Women Reservation Act and Rules as they ought to have in making the final selection and appointment to the post of Assistant Deputy Controller of,,,,,,
Civil Defence (Junior).,,,,,,
19. Under the facts and circumstances of the case and as a result of the foregoing discussions, the selection and appointment of the respondent No.5",,,,,,
on the basis of the select list dated 26.06.2014 is found to be vitiated and therefore, the same is set aside. In his place, the respondent authorities shall",,,,,,
appoint the petitioner within a period of one month from the date of receipt of a certified copy of this order. It is made clear that the respondent,,,,,,
authorities shall appoint the petitioner w.e.f the date on which the private respondents were appointed and fix her pay notionally without arrears. Her,,,,,,
seniority in service for the purpose of promotion shall be reckoned only from the date of actual service.,,,,,,
20. With the above observations and directions, the writ petition stands allowed to the extent indicated. No cost.",,,,,,
