TaxTMI 
TaxTMI 
1995 (7) TMI 446
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.... 27% 2. Hill Region 3% 3. Uttarakhand Region 3% 4. Scheduled Caste 21% 5. Scheduled Tribe 2% 6. Real dependents of freedom fighters 5% 7. Son/daughter of soldier died in war/handicapped solders 2% 8. For Handicapped Candidates 2% 65% A further reservation in favour of women was also provided to the extent of thirty percent in each of the above categories. The reservations so provided were challenged by way of a writ petition in this Court under Article 32 of the Constitution - Civil Writ Petition No. 777 of 1994 (Swati Gupta v. State of Uttar Pradesh and Ors.). The contention of the petitioner was that reservation of sixty five percent of seats was contrary to the decision of this Court in Indra Sawhney and Ors. v. Union of India and Ors. and, therefore, void. Pending the said writ petition, the Government issued a notification on December 17, 1994 modifying the reservation policy contained in the notification of May 17, 1994. It would be appropriate to set out the notification dated December 17, 1994 in its entirety: No. 6550/Sec-14/V-111/93 Lucknow dated 17.12.94 From: Ra....
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.... entitled for the reservation. 5. I am also directed to clarify that if a candidate of reserved category, mentioned in para 3 above, is selected alongwith general category candidates on the basis of merit, he shall not be adjusted against reserved seats, as G.O. in this regard has already been issued. So, 50% seats of general category shall be filled on the basis of merit prior to filling of reserve seats mentioned in para 3 above. Please ensure strict compliance of these orders. Yours faithfully, sd/- Ravindra Kumar Sharma Sachiv 3. This revised notification was brought to the notice of this Court at the hearing of the aforesaid writ petition. After noticing both the aforesaid notifications this Court (the Bench comprising R.M. Sahai J. and one of us, Suhas C.Sen J.) observed as follows: 2. Reservation of 65% resulting in reducing the general category of 35% was undoubtedly violative of Article 16. Further by reserving 30% of the general seats for ladies the general category shrank to 5%. But these glaring infirmities have been rectified by the amended circular. Reservation of 30% for ladies has now been confined to....
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.... 7. The Lucknow University had issued a notification calling for applications for admissions to medical courses in the State in accordance with the notification of May 17, 1994. After the decision of this Court in Swati Gupta and in the light of the revised notification by the Government, as also the clarification issued on February 14, 1995, the University issued a corrigendum stating that the reservation in favour of five categories, viz., (1) actual dependents of freedom fighters - 5%, (2) sons/daughters of soldiers/deceased/ disabled in war - 2%, (3) physically handicapped - 2%, (4) candidates of hill area -3%, and (5) candidates of Uttarakhand area - 3% (hereinafter referred to as in this judgment as "Special Categories'") shall be horizontal reservations and not vertical reservations. The corrigendum stated: ...following Horizontal reservation has been provided on the total seats of all the courses of every Medical College to be filled on the basis of Combined Pre-Medical Test, 1994: 1) Actual dependents of freedom fighters 5% 2)Sons/daughters of Soldiers/deceased/disabled inwar 2% 3) Physically handicapped 2% 4) Candidates of....
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....nbsp; 27% 5. As per above mentioned provisions the provisions for reservations in application form and important guidelines for C.P.M.T. 1994 issued earlier will deemed to be modified accordingly. 6. Therefore, it is desired from the candidates falling under horizontal reservations that if they belong to d Caste, d Tribe or Other Backward Class Category, then they should send Caste Certificate on the following proforma giving his Roll number and examination details to the Registrar, Lucknow University by 28.2.95, If Caste Certificate is not received within the prescribed period, then it will be deemed that concerned candidates belongs to the General Category. Once a Caste Certificate is furnished same cannot be changed subsequently. The prescribed proforma of Caste Certificate is being sent to the concerned candidates falling under horizontal reservation through UPC for necessary action as aforesaid. In case proforma of Caste Certificate is not received by post, then same can be obtained by contacting Registrar, Lucknow University. 8. In accordance with the procedure afore....
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....n to the contentions raised in the writ petition. 11. In the initial notification calling for applications, the fifteen percent special reservations were treated as vertical reservations along with reservations in favour of Other Backward Classes, d Castes and d Tribes. Applications were accordingly received. But with the issuance of the revised notification of December 17, 1994, the decision of this Court in Swati Gupta and the clarification contained in the letter dated February 14, 1995, these special reservations became horizontal reservations. Accordingly, a corrigendum was issued by the Lucknow University calling upon the candidates belonging to these special categories to specify to which social reservation category they belong. In other words, the candidates who had applied under any of the said special reservations were asked to specify whether they belong to d Tribes, d Castes, Other Backward Classes or to open competition category, as the case may be. It is stated that the candidates did indicate the same. According to the counter affidavit now filed on behalf of the respondents, it appears that out of 2130 candidates who had applied against the five special reservati....
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....d result is being filed herewith and marked as Annexure R-IV to this affidavit. 13. A reading of Para 16 makes it clear that the authorities incharge of making admissions first took up the special category reservations and filled them up. Of the 112 candidates, 101 were from what may be called for the sake of convenience, 'unreserved category' while nine candidates belonged to Other Backward Class category. But it appears that inasmuch as the said nine candidates belonging to Other Backward Classes had secured equal marks with the general candidates and were accordingly selected on merit in the O.C. quota, they were treated as Open competition candidates. The result was that out of 112 seats reserved for special categories, 110 seats were taken away from the Open competition (O.C.) category, thus leaving only 263 seats for the general candidates, i.e., O.C. candidates not belonging to any of the special reservations. It is the above method of filling of seats that has been challenged in these writ petitions. 14. The contention of the learned Counsel for the petitioners is two fold: (i) by virtue of the revised notification of December 17, 1994, the decision of this Co....
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....ns are proportionately divided among the vertical (social) reservations and are not interransferable, it would be a case of compartmentalised reservations. We may illustrate what we say: Take this very case; out of the total 746 seats, 112 seats (representing fifteen percent) should be filled by special reservation candidates; at the same time, the social reservation in favour of Other Backward Classes is 27% which means 201 seats for O.B.Cs.; if the 112 special reservation seats are also divided proportionately as between O.C., O.B.C., S.C. and S.T., 30 seats would be allocated to the O.B.C. category; in other words, thirty special category students can be accommodated in the O.B.C. category; but say only ten special reservation candidates belonging to O.B.C. are available, then these ten candidates will, of course, be allocated among O.B.C. quota but the remaining twenty seats cannot be transferred to O.C. category (they will be available for O.B.C. candidates only) or for that matter, to any other category; this would be so whether requisite number of special reservation candidates (56 out of 373) are available in O.C. category or not; the special reservation would be a water ti....
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....uture guidance - that while providing horizontal reservations, they should specify whether the horizontal reservation is a compartmental one or an overall one. As a matter of fact, it may not be totally correct to presume that the Uttar Pradesh Government was not aware of this distinction between "overall horizontal reservation" and "compartmentalised horizontal reservation", since it appears from the judgment in Swati Gupta that in the first notification issued by the Government of Uttar Pradesh on May 17, 1994, the thirty percent reservation for ladies was split up into each of the other reservations. For example, it was stated against backward classes that the percentage of reservation in their favour was twenty seven percent but at the same time it was stated that thirty percent of those seats were reserved for ladies. Against every vertical reservation, a similar provision was made, which meant that the said horizontal reservation in favour of ladies was to be a "compartmentalised horizontal reservation". we are of the opinion that in the interest of avoiding any complications and intractable problems, it would be better that in future the horizontal reservations are compartme....
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.... said in Indra Sawhney. While holding that what may be called "horizontal reservation" can be provided under Clause (1) of Article 16, the majority judgment administered the following caution in para 744; "(B)ut at the same time, one thing is clear. It is in very exceptional situation - and not for all and sundry reasons - that any further reservations of whatever kind, should be provided under Clause (1). In such cases, the State has to satisfy, if called upon, that making such a provision was necessary (in public interest) to redress the specific situation. The very presence of Clause (4) should act as a damper upon the propensity to create further classes deserving special treatment. The reason for saying so is very simple. If reservations are made both under Clause (4) as well as under (1), the vacancies available for free competition as well as reserved categories would be correspondingly whittled down and that is not a reasonable thing to do". Though the said observations were made with reference to Clauses (1) and (4) of Article 16, the same apply with equal force to Clauses (1) and (4) of Article 15 as well. In this case, the reservation of fifteen percent of seats for spec....