JUDGMENT [Per : Hon’ble V.K. Bist, J. (Oral)] Heard learned counsel for the parties and perused the entire material available on the record. 2. Brief facts, which emerge out from the record, are that the respondent no. 1 Uttarakhand Public Service Commission issued an advertisement no. A-7/E-1/07-08 whereby 33 vacancies of Civil Judge (Junior Division) were notified. Out of these 33 vacancies, 5 were reserved for candidates belonging to Scheduled Caste Category who are residents of Uttarakhand State. It was provided in the advertisement that horizontal reservation shall be applicable as per relevant Government Orders. Since the petitioner possessed all eligibility conditions as indicated in the advertisement, he applied for the post of Civil Judge (Jr. Div.) claiming benefit of reservation as Scheduled Caste Category candidate. The petitioner appeared in the preliminary examination and thereafter in main examination as well as in interview. The result thereof was declared on 02.10.2008 but the name of the petitioner was not placed in the select list. Since the petitioner was confident in getting selected in the examination, he was surprised to find that he was not selected. As such, the petitioner made an application to respondent no. 1 requesting to disclose the marks scored by him. The petitioner was informed vide office memorandum dated 07.10.2008 that he scored 458 marks out of 850 in written examination and 71 marks out of 100 in interview, thus 529 marks out of 950 aggregate. Thereafter, the petitioner made an application under Right to Information Act to respondent no. 1 requesting to disclose the marks scored by respondent nos. 4, 6 & 7 but the respondent no. 1 did not furnish information as sought by the petitioner. The petitioner, thereafter unofficially enquired about the marks scored by respondent nos. 4, 6 & 7 in the aforesaid examination and it was revealed that all of them had scored much lesser marks than the petitioner. The petitioner scored 529 marks whereas respondent nos. 4, 6 & 7 scored 489, 489 and 483 marks respectively. In spite of the fact that the petitioner scored higher marks, he was not selected. 3. The State Govt. issued a reservation policy vide Govt. Order dated 18.07.2001, which provides 19% vertical reservation for the Scheduled Caste. The Govt. Order further provides 20 % horizontal reservation for women. It is further clarified in the Govt. Order that she belongs. In spite of the fact that the petitioner scored higher marks, he was not selected. 3. The State Govt. issued a reservation policy vide Govt. Order dated 18.07.2001, which provides 19% vertical reservation for the Scheduled Caste. The Govt. Order further provides 20 % horizontal reservation for women. It is further clarified in the Govt. Order that she belongs. The percentage of horizontal reservation for women was increased from 20 % to 30 % vide another Govt. Order dated 24.07.2006. As per advertisement, 5 vacancies out of total 33 vacancies were reserved for Scheduled Caste Category candidates. 4. Learned counsel for the petitioner Sri Manoj Tewari argued that since 30% horizontal reservation is available for the women category candidates, only two vacancies can be filed under Schedule Caste women category whereas the respondent no. 1 has recommended three candidates under this category. Contention of the petitioner is that horizontal reservation has to be accounted for against the category-wise reservation, which is itself vertical in nature. According to Mr. Manoj Tiwari selection of three Scheduled Caste women candidates amounts to excessive reservation, which is not permissible under the law. In support of his arguments Mr. Manoj Tewari referred and relied on paragraph-8 of a judgment of the Supreme court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and others reported in (2007) 8 S.C.C., 785 which is reproduced hereunder:- “8. We may also refer to two related aspects before considering the facts of this case. The first is about the description of horizontal reservation. For example, if there are 200 vacancies and 15% is the vertical reservation for SC and 30% is the horizontal reservation for women, the proper description of the number of posts reserved for SC, should be : “For SC: 30 posts, of which 9 posts are for women. “We find that many a time this is wrongly described thus : “For SC : 21 posts for men and 9 posts for women, in all 30 posts.” Obviously, there is, and there can be, no reservation category of “male” or “men”. 5. Mr. B.D. Kandpal, learned counsel for respondent no. 1 submitted that horizontal reservation was counted against the total vacancies and was not counted category wise separately. According to Mr. 5. Mr. B.D. Kandpal, learned counsel for respondent no. 1 submitted that horizontal reservation was counted against the total vacancies and was not counted category wise separately. According to Mr. Kandpal, against the total 33 posts, the horizontal reservation for Uttarakhand women came to 10 posts and against the said 10 posts, only 3 candidates of Uttarakhand women category were finally selected. All of them are Scheduled Caste Category, as such, against the 5 Scheduled Caste reserved posts, these three Scheduled Caste Uttarakhand women candidates have been adjusted in Scheduled Caste Category in accordance to their merit. According to him the respondent no. 1 has not committed any illegality in selecting 3 women candidates under Scheduled Caste reserved category by counting and applying 30% against a total of 33 vacancies. In support of his argument Mr. B.D. Kandpal has placed reliance on paragraph-95 of the judgment of the Supreme Court in Indra Sawhney vs. Union of India reported in AIR 1993 Supreme Court-477. The same is quoted as below:- “95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture : all reservations are not of the same nature. 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 inter-locking 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 S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) 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. 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. It is, however, made clear that the rule of 50% shall be applicable only to reservations proper, they shall not be-indeed cannot be applicable to exemptions, concessions or relaxations, if any, provided to ‘Backward Class of Citizens’ under Article 16(4).” 6. Mr. Arvind Vashishtha, Advocate for respondent no. 7 also adopted the arguments advances by Mr. B.D. Kandpal, Advocate. 7. During the course of arguments Mr. Manoj Tewari, Advocate made statement, at bar, that he is not pressing the reliefs in the writ petition so far as the same relate to respondent nos. 4, 5 & 6 and pressing the relief claimed against respondent no. 7 only. He has further stated that he is only assailing computation of seats by the respondent no. 1 Scheduled Caste (women) and in view of wrong computation in recommendation made in favour of respondent no. 7 deserves to be set-aside. 8. After hearing learned counsel for the parties we are not satisfied with the arguments advanced by Mr. B.D. Kandpal Advocate that counting and applying 30% against a total of 33 vacancies, 10 women candidates would be eligible. In our opinion 30% horizontal reservation has to be accounted for only in the concerned category and because in the concerned category of Scheduled Caste there are total 5 vacancies, accounting for 30% would mean that two seats would be reserved in the horizontal reservation for women candidates. Case law cited by Shri B.D. Kandpal also does not support his contention. Therefore, the respondent no. 1 has committed mistake by recommending 3 women candidates under the Scheduled Caste women category and recommendation made for selection in favour of respondent no. 7 deserves to be set-aside. 9. It is the uncontroverted factual position in this case that in the Scheduled Caste category, the petitioner is highest in merit amongst the eligible candidates, because he has secured 529 marks out of 950, at a percentage of 55.68%. As against this, respondent no. 7 has secured 483 marks at a percentage of 50.84%. Actually, none of the other selected Scheduled Caste category women candidates has secured more marks than the petitioner. As against this, respondent no. 7 has secured 483 marks at a percentage of 50.84%. Actually, none of the other selected Scheduled Caste category women candidates has secured more marks than the petitioner. A positive relief, therefore, has to be given to the petitioner to make his efforts successful. 10. In the final analysis, therefore, while allowing this petition, we quash the selection of respondent no. 7 as well as the recommendation made by respondent no. 1 in her favour and by issuance of a writ of mandamus directed respondent no. 1 to make recommendation in favour of the petitioner against the resultant vacancy in the Scheduled Caste category and also consequentially direct respondent no. 2 to issue appointment. 11. No order as to costs.