Justice saravan directed the govt to appoint the petitioner to the post of app because of the erroneous adoption of reservation policy in the matter of appointment to the post of APP by the previous govt particularly in respect of horizontal reservation. Order: These petitions coming on this day for hearing upon perusing the petitions and the respective affidavits filed in support thereof MR.R.SINGARAVELAN, Advocate for the and SENIOR hearing the arguments MR.I.SADDAM HUSSAIN, and of upon ADVOCATE for petitioner in WP.NO.11714/2021, MR.R.SINGARAVELAN, Senior Counsel for I.SADDAM HUSSAIN Advocate for the Petitioner in WP.NO.1309/2021 and of GOVERNMENT ADVOCATE on behalf of the 1 MR.N.VAITHIYALINGAM, Standing Counsel MR.L.S.M.HASAN for FIZAL, Respondent, and of the 2 and 3rd Respondents, and of MR.K.SASINDRAN, Advocate for the 4 Respondent, the court made the following order:

eW. P.Nos.11714 & 1309 of 2021and
W.M.P.Nos.12471 & 12472 of 2021 and 1455 of 2021
(Through Video Conferencing) C.SARAVANAN, J.
Mr.L.S.M.Hasan Fizal, the learned Government Advocate for the first respondent has stated that though he has asked for instructions from the department on several occasions to assist the Court, he has been unable to elicit any positive response from the department.
2. The issue is prima facie covered in favour of the petitioner in the light of the latest decision of the Hon’ble Supreme Court in Saurav Yadav and others Vs. State of Uttar Pradesh and others, (2021) 4 SCC 542. The Hon’ble Supreme Court there has considered all the previous decisions of it and has given a guideline as to how the horizontal reservation has to be implemented. Though the said decision pertains to horizontal reservation at
50% in terms of the decision of the Hon’ble Supreme Court in Indra Sawhney Vs. Union of India 1992 Supp (3) SCC 217, the manner in which the horizontal reservation has to be implemented is applicable even in the context of 69% reservation under the provisions of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 which has followed the pre-existing Government orders which was in force prior to that.
3. The Hon’ble Supreme Court in Saurav Yadav and others Vs. State of Uttar Pradesh and others, (2021) 4 SCC 542, has held as under:-
28. Thus, according to the second view, different principles must be adopted at two stages; in that:
(I) At the initial stage when the “Open or General Category” seats are to be filled, the claim of all reserved category candidates based on merit must be considered and if any candidates from such reserved categories, on their own merit, are entitled to be selected against Open or General Category seats, such placement of the reserved category candidate is not to affect in any manner the quota reserved for such categories in vertical reservation.
(II) However, when it comes to adjustment at the stage of horizontal reservation, even if, such reserved category candidates are entitled, on merit, to be considered and accommodated against Open or General seats, at that stage the candidates from any reserved category can be adjusted only and only if there is scope for their adjustment in their own vertical column of reservation. Such exercise would be premised on following postulates:
(A) After the initial allocation of Open General Category seats is completed, the claim or right of reserved category candidates to be admitted in Open General Category seats on the basis of their own merit stands exhausted and they can only be considered against their respective column of vertical reservation.
(B) If there be any resultant adjustment on account of horizontal reservation in Open General Category, only those candidates who are not in any of the categories for whom vertical reservations is provided, alone are to be considered.
(C) In other words, at the stage of horizontal reservation, Open General Category is to be construed as category meant for candidates other than those coming from any of the categories for whom vertical reservation is provided.
29. The second view may lead to a situation where, while making adjustment for horizontal reservation in Open or General Category seats, less meritorious candidates may be adjusted, as has happened in the present matter. Admittedly, the last selected candidates in Open General female category while making adjustment of horizontal reservation had secured lesser marks than the applicants. The claim of the applicants was disregarded on the ground that they could claim only and only if there was a vacancy or chance for them to be accommodated in their respective column of vertical reservation.
30. Both the views can be compared and the issues involved in this matter can be considered in the light of a hypothetical illustration with following assumptions:
30.1. The total seats available are 100; comprising of 50 seats for “Open/General Category”. The reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes is at 20%, 10% and 20% respectively and all candidates from these reserved categories are otherwise eligible to be considered against Open General Category.
30.2. The percentage of seats available for “Women” by way of compartmentalized horizontal reservation is 30%.
30.3. Out of all qualified candidates, when first 50 meritorious candidates are picked up to fill up the seats for “Open/General Category”:
(a) There are only 11 women in first 50 candidates in “Open/General Category”; and
(b) the last five persons in the “Open/General Category” viz. the candidates at Serial Nos. 46, 47, 48, 49 and 50 are—
Sl. No. 46 — Open Category — Male
Sl. No. 47 — Open Category — Male
Sl. No. 48 — Scheduled Caste — Male
Sl. No. 49 — Scheduled Caste — Male
Sl. No. 50 — Scheduled Caste — Female
(c) first four female candidates in the waiting list, who do not belong to any of the reserved categories, are having overall merit position at Serial Nos. 52, 64, 87 and 88.
(d) Going by the steps indicated in para 18 of the decision in Anil Kumar Gupta [Anil Kumar Gupta v. State of U.P., (1995) 5
SCC 173] , at the stage of filling up seats for Scheduled Castes Category, there are 7 females among 20 candidates with last 2 candidates being females whose overall ranking in the merit list is at Serial Nos. 80 and 86.
(e) Similarly, the seats for Scheduled Tribes and Other Backward Categories are filled up.
(f) Out of 20 candidates selected in Other Backward Category there are 09 females.
31. The basic features of this illustration can be put in the following tabular format:
Total Seats : 100
Categories Open / General Scheduled Castes Scheduled Tribes Other Backward
Total Seats : 100
Classes
Seats available 50 20 10 20
Minimum seats for women 15 6 3 6
Seats occupied by women before application of
horizontal reservation 11 7 3 9
Shortfall, if any 4 Nil Nil Nil
32. Having allocated first 50 seats in Open General Category and filled up other vertical column of reservation, the next step is to effect horizontal reservation for women. If the reservation for women was to be “overall horizontal reservation”, there are 30 women (11+07+03+09) and nothing further is required to be done.
33. However, if the horizontal reservation for women is to be taken as “compartmentalised”, as we are concerned in the present matter and the instant illustration, the appropriate steps must comprise of following:
33.1. Since the shortfall for women is of four seats in Open/General Category, last four male candidates, namely, those at Serial Nos. 46, 47, 48 and 49 initially allocated to Open/General Category, will have to be displaced. The candidate at Serial No. 50, being a woman, cannot be displaced.
33.2. The male candidates at Serial Nos. 46 and 47 being from Open/General Category, after such displacement will be completely out of reckoning as they cannot go to any reserved category.
33.3. The candidates at Serial Nos. 48 and 49 being more meritorious than the candidates originally placed in the vertical column of reservation for Scheduled Castes, must go back to their own vertical column. This will cause resultant displacement of two candidates in that vertical column of reservation. The 20th candidate, whose overall merit position is at Serial No. 86, though a female, but being in excess of quota for Scheduled Castes female and a male candidate immediately above the 19th candidate will thus get displaced.
33.4. If we go by the second view, the female candidates at Serial Nos. 52, 64, 87 and 88 must be accommodated against Open General Category seats whereas the candidate at Serial No. 86, though more meritorious than those at Serial Nos. 87 and 88, must be left without any seat.
33.5. On the other hand, if we go by the first view, the claim of reserved category candidates if they are more meritorious, has to be considered, in which case the candidate at Serial No. 86 will be required to be accommodated. Resultantly, the candidate at Serial No. 88 must give way.
33.6. There can be various such permutations and combinations and in a given case, the female candidates concerned from reserved category in the waiting list for their respective vertical columns of reservation, may be more meritorious than the female candidates in the waiting list for Open/General category seats. The instant illustration is given to highlight the situation that can possibly emerge if the second view is adopted.
34. The second view, based on adoption of a different principle at the stage of horizontal reservation as against the one accepted to be a settled principle for vertical reservation, may thus lead to situations where a less meritorious candidate, not belonging to any of the reserved categories, may get selected in preference to a more meritorious candidate coming from a reserved category. This incongruity, according to the second view, must be accepted because of certain observations of this Court in Anil Kumar Gupta [Anil Kumar Gupta v. State of U.P., (1995) 5 SCC 173] and Rajesh Kumar Daria [Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 : (2009) 1 SCC (L&S) 1055] . The following sentences from these two decisions are relied upon in support of the second view:
“18. … 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.” [from SCC p. 185, para 18 of Anil Kumar Gupta [Anil Kumar Gupta v. State of
U.P., (1995) 5 SCC 173] ]
9. … But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations.” [from SCC p. 792, para 9 of Rajesh Kumar Daria [Rajesh Kumar Daria v. Rajasthan Public Service
Commission, (2007) 8 SCC 785 : (2009) 1 SCC (L&S) 1055] ]
These sentences are taken to be a mandate that at the stage of horizontal reservation the candidates must be adjusted/accommodated against their respective categories by deleting corresponding number of candidates from such categories and that the principle applicable for vertical (social reservation) will not apply to horizontal (special reservation). In our view, these sentences cannot be taken as a declaration supporting the second view and are certainly being picked out of context.
4. Though the petitioner has asked for a wider relief to stay the operation of G.O.(4D) No.17, Home (Cts-VI) Department, dated 25.02.2021 on account of incorrect application of horizontal reservation, this Court is inclined to pass an interim order by protecting the interest of the petitioner.
5. Therefore, without disturbing the rights of the fourth respondent in this writ petition for the present, the first respondent is directed to absorb the petitioner as an Assistant Public Prosecutor in terms of Notification No. 23/18 dated 03.10.2018 considering the fact that the first respondent has proceeded to appoint 12 women candidates in BC (OBCM) i.e, Backward Class (other than Backward Class Muslims) even though many of them have scored lesser marks. This exercise shall be carried out by the first respondent within a period of four weeks from the date of receipt of a copy of this order.
6. All appointment including that of the petitioner will be subject to the final outcome of the present Writ Petition.
7. Post these cases after four weeks for filing counter and for further order.
24.09.2021
jas / jen
C.SARAVANAN, J.
jas
W.P.Nos.11714 & 1309 of 2021 and
W.M.P.Nos.12471 & 12472 of 2021 and 1455 of 2021
24.09.2021

Order: These petitions coming on this day for hearing upon perusing the petitions and the respective affidavits filed in support thereof MR.R.SINGARAVELAN, Advocate for the and SENIOR hearing the arguments MR.I.SADDAM HUSSAIN, and of upon ADVOCATE for petitioner in WP.NO.11714/2021, MR.R.SINGARAVELAN, Senior Counsel for I.SADDAM HUSSAIN Advocate for the Petitioner in WP.NO.1309/2021 and of GOVERNMENT ADVOCATE on behalf of the 1 MR.N.VAITHIYALINGAM, Standing Counsel MR.L.S.M.HASAN for FIZAL, Respondent, and of the 2 and 3rd Respondents, and of MR.K.SASINDRAN, Advocate for the 4 Respondent,