JUDGMENT By the Court.—The petitioner is a law graduate and a physically handicapped person with disability, certified by the Chief Medical Officer, Allahabad on 4.12.2003 on account of ‘’Postpathoparisis of left upper limb with Disability of Fifty (50%) of Affected Part’. By this writ petition he has prayed for direction to quash the appointment of Smt. Lavlesh Singh and Shri Akhilesh Kumar Tiwari, respondent Nos. 3 and 4 as Assistant Prosecuting Officers in the quota of physically disabled persons in the selections advertised by the Public Service Commission, U.P. at Allahabad, in Employment News dated 7th -13th October, 2006 for filling up 86 vacancies including 43 vacancies in general category; 24 in OBC; 18 in SC; 1 in ST and 17 backlog reserved vacancies. He has also prayed for direction to the respondent to consider him for appointment to the post of Assistant Prosecuting Officer by holding main examination and interview of the petitioner and to appoint him on the post. 2. We have heard Shri Arvind Srivastava, learned counsel for the petitioner. Learned Standing Counsel has appeared for the State-respondent. Shri P.S. Baghel assisted by Shri Gautam Baghel has appeared for the Public Service Commission, U.P. Shri K.R. Sirohi alongwith Ms. Stuti Singh have appeared for Smt. Lavlesh Singh-respondent No. 3. 3. An advertisement was issued by the Public Service Commission, U.P. at Allahabad (in short the Commission) in the year 2003, inviting applications for 57 posts of Asstt. Prosecuting Officers providing for quota by way of horizontal reservation for physically handicapped; dependents of freedom fighters, and women candidates in accordance with the Government Orders. In the advertisement published for the next recruitment after three years in Employment News dated 7th-13th October, 2006, for 86 vacancies 43 vacancies were included in general category, and 17 backlog vacancies, for reserved category, the advertisement did not provide for reservation for physically handicapped persons. The application form, however, provided for information to be submitted by the candidates in Column C (d) to describe the nature of physical disability and the category in which the person may be included. 4. The petitioner filed a writ petition No. 23468 of 2007, with a prayer to direct the respondents to provide quota for physically handicapped persons in the selections in accordance with the U.P. Public Service Commission (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993, as amended in 1997. 4. The petitioner filed a writ petition No. 23468 of 2007, with a prayer to direct the respondents to provide quota for physically handicapped persons in the selections in accordance with the U.P. Public Service Commission (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993, as amended in 1997. The petitioner submitted that vide Notification dated 31st July, 2007 the post of Asstt. Prosecuting Officer in the Directorate of Prosecution (Home) has been identified for reservation for physically handicapped candidates. By an order dated 10.7.2008 the Court directed that the respondents shall ensure that one post of Asstt. Prosecuting Officer is left vacant, in the open general category and to mention this fact in the select list to be forwarded by the Commission to the State Government. The writ petition was disposed of on 13.10.2008 with directions that those physically handicapped candidates, who have appeared in the examination, but have failed on the basis of such advertisement will be considered in the category of physically handicapped candidates and the best amongst them shall be selected. The directions of the Court are quoted as follows : “So far as non-consideration of the candidature of the petitioner as physically handicapped candidate is concerned, at present we are of the view that those physically handicapped candidates, who have appeared in the said examination but failed on the basis of such advertisement, will be considered in the category of physically handicapped candidates and the best among them can be selected. Thus, the writ petition is disposed of. No order is passed as to costs. Dt.13.10.2008 Sd-Amitava Lala, J. KST [WA-23468-2007] Sd-Arun Tandon, J.” 5. It is stated in para 15 of the writ petition that the petitioner filed the certified copy of the order of the High court dated 13.10.2008 in the Commission on 4.11.2008 and made an application demanding information under the Right to Information Act, 2005, about the cut off marks of the applicant and other physically handicapped persons, who had appeared in the examination. A reminder was sent on 24.11.2008. The Commission gave a reply to the petitioner on 24.1.2009, informing him that the Commission has not taken a decision as yet on the judgment of the High Court dated 13.10.2008, and the letter of the State Government dated 6.9.2008. 6. The petitioner was not declared successful in the preliminary examination. A reminder was sent on 24.11.2008. The Commission gave a reply to the petitioner on 24.1.2009, informing him that the Commission has not taken a decision as yet on the judgment of the High Court dated 13.10.2008, and the letter of the State Government dated 6.9.2008. 6. The petitioner was not declared successful in the preliminary examination. The Commission informed the petitioner by its letter dated 14.1.2009 that in the meeting held at the Government level on 6.9.2008 presided by the Principal Secretary of the department and assisted by the representatives of the Public Service Commission, it was decided that since there is a provision of 3% horizontal reservation for physically handicapped persons and that since the advertisement did not mention about the reservation, a corrigendum be issued by the Commission. It was also decided that in the corrigendum the physically handicapped persons should be allowed to apply for the reserved posts. 7. It is stated in para 27 of the writ petition that 6 persons out of those, who applied in general category belonging to physically handicapped category were called for main examination. The cut off marks of different categories in the preliminary examination were as follows : 1.Genera category 99 2.Scheduled castes 83 3.Women 86 Six persons, who were given the benefit of physically handicapped persons, and were called for main examination, secured marks in the preliminary and main examination as follows : Sl. Name Roll Category Marks Marks No. No. obtained in obtained in preliminary main examination examination 1. Sachin Kumar 16431 General 107 198 Rai 2. Km. Sarika 18672 Gen.+ 86 178 Women 3. Rajiv Kumar 25289 SC 85 193 Bhartiya 4. Smt. Lavles 27744 OBC+ 90 201 Singh Women 5. Akhilesh Kumar 29277 General 104 211 Tiwari 6. Raj Kumar 36208 SC 86 182 Verma 8. The petitioner was not permitted to appear in the main examination, and thus he could not compete with the above six persons. Out of the six, two persons namely Akhilesh Kumar Tiwari in general category and Smt. Lavlesh Singh in OBC + women category were selected by providing horizontal reservation in their respective categories. 9. Shri Arvind Srivastava, learned counsel for the petitioner submits that out of 86 advertised posts reservation for physically handicapped persons at 3% would be 2.54 and that by applying principle of rounding off, three vacancies were to be reserved for filling handicapped persons. 9. Shri Arvind Srivastava, learned counsel for the petitioner submits that out of 86 advertised posts reservation for physically handicapped persons at 3% would be 2.54 and that by applying principle of rounding off, three vacancies were to be reserved for filling handicapped persons. The Commission selected and recommended only two persons. He further submits that the Commission invited 18 persons for each vacancy for final examinations, whereas in the case of physically handicapped persons only six candidates were invited to appear in the final examination for the two vacancies worked out by the Commission. The petitioner secured 96 marks in the preliminary examination and was thus entitled in accordance with the ratio in which other candidates were invited to appear in the main examination. 10. Shri Arvind Srivastava submits that the Commission has committed gross illegality in reducing the quota of physically handicapped persons, from out of 86 vacancies to 2 instead of 3, and thereafter discriminated the physically handicapped candidates in calling them in insufficient numbers in the ratio of 1:6 for main examination, whereas ratio for general category and other reserved categories was 1:8. Lastly he submits that the selected persons namely Smt. Lavlesh Singh and Shri Akhilesh Kumar Tiwari, respondent Nos. 3 and 4 do not belong to the category of physically handicapped persons and were allowed to appear in the final examination with much lower marks. In respect of Km. Sarika, Rajiv Kumar Bhartiya, Smt. Lavlesh Singh and Shri Raj Kumar Verma, he submits that the physically handicapped persons stand in a separate quota and have to be selected on their own merit. They have been wrongly assigned reservation in the main category provided, with vertical reservation in which they applied. The Commission should have selected the physically handicapped candidates in their own merit and thereafter assigned them horizontal reservation in their own category. The procedure adopted by the Commission for applying reservation in main examination on the basis of marks secured in preliminary examination was incorrect. The same criteria was not followed for vertical reservation. 11. The Commission should have selected the physically handicapped candidates in their own merit and thereafter assigned them horizontal reservation in their own category. The procedure adopted by the Commission for applying reservation in main examination on the basis of marks secured in preliminary examination was incorrect. The same criteria was not followed for vertical reservation. 11. Shri Arvind Srivastava has relied upon the judgments of the Supreme Court in Shiv Prasad v. Government of India and others, (2008) 10 SCC 382 ; Andhra Pradesh Public Service Commission v. Baloji Badhavath and others, (2009) 5 SCC 1 and Union of India v. Ramesh Ram and others, (2009) 6 SCC 619 , in support of his submissions. 12. Shri P.S. Baghel appearing for the Public Service Commission submits that in the Advertisement No. A-1/E-1/2006 for conducting examination of Asstt. Prosecuting Officers, 2006, as per the requisition received from the State Government, at the time of advertisement, no provision was made for reservation for physically handicapped persons. The examination was to be conducted in three stages namely (i) preliminary examination (ii) main examination and (iii) interview. The petitioner Shri Devendra Nath Tiwari appeared in the preliminary examination, the result of which was declared. He filed Writ Petition No. 23468 of 2007 for providing reservation to physically handicapped candidates. Since there was no reservation provided for physically handicapped candidates, the petitioner was treated as general category candidates and was declared unsuccessful in the preliminary examination. The main examination was conducted on 28.11.2007 and 29.11.2007. By the time the interim order was passed on 10.7.2008 and the writ petition was finally decided on 13.10.2008, the main examinations were held and the Commission was going to prepare the result of the main examination. 13. The Commission in compliance with the judgment after taking consent of the State Government decided to provide reservation to only those physically handicapped candidates, who had appeared in the main examination. Out of the total 86 vacancies of the Asstt. Prosecuting Officers, according to 3% horizontal reservation only 2 posts were reserved for physically handicapped candidates and that as per the policy of the Commission 2 x 3, i.e. 6 candidates qualified for interviews. In the final list two candidates of physically handicapped category were selected, one of them is general and another belong to OBC + female of U.P. The final select list was forwarded to the State Government. In the final list two candidates of physically handicapped category were selected, one of them is general and another belong to OBC + female of U.P. The final select list was forwarded to the State Government. Shri P.S. Baghel, learned counsel for the petitioner would submit that the Commission did not cause any discrimination. The judgment dated 13.10.2008 in Writ Petition No. 23468 of 2007, was fully complied with. The Commission did not provide for reservation for physically handicapped candidates. It, however, accepted the judgment of the High court dated 13.10.2008 with direction; “those physically handicapped candidates, who have appeared in the said examination but failed on the basis of such advertisement, will be considered in the category of physically handicapped candidates and the best among them can be selected.” 14. The Commission in consultation with the State having decided to give reservation to physically handicapped persons further decided that since out of 86 vacancies only 2 vacancies were to be reserved for providing 3% horizontal reservation to physically handicapped person, only 6 candidates could be called for interview in their respective categories. Shri Baghel submits that principle of rounding off is not applicable to reservation for physically handicapped persons. If the principle of rounding off is applied to the advertised vacancies, the quota of physically handicapped candidates would exceed beyond 3%. In such case the reservation at 3.48% will be beyond the statutory limit of 3% provided under the Act. Shri Baghel submits that the petitioner did not qualify in the preliminary examination. He scored 96 marks, much below the marks awarded to the two general category candidates namely Shri Sachin Kumar Rai and Shri Akhilesh Kumar Tiwari with 107 and 104 marks respectively. In the final examination Shri Akhilesh Kumar Tiwari scored 211 marks and Smt. Lavlesh Singh scored 201 marks. Although Smt. Lavlesh Singh received the benefit of OBC as well as the women in U.P., she was even otherwise at Sl.No. 2 in the main examination and having succeeded in the interviews was provided with horizontal reservation in her own category, for appointment. Shri Baghel submits that in the circumstances the Commission did not make any mistake in applying reservation to the advertised post, and selected best candidates amongst all as per the directions of the High Court. Shri Baghel submits that in the circumstances the Commission did not make any mistake in applying reservation to the advertised post, and selected best candidates amongst all as per the directions of the High Court. He would submit that chance of succeeding in the final examination and interviews are not the grounds on which the Court may interfere. The Commission has selected the best amongst physically handicapped persons. 15. The U.P. Act of 1993 defines physically handicapped person under Section 2 (e) after its amendment in 1997, a person which suffers from (i) blindness or low vision (ii) hearing impairment (iii) locomotive disability or cerebral palsy. Section 3 provides for reservation for vacancies in favour of the physically handicapped etc. Section 3 of the Act is quoted as below : “3. Reservation of vacancies in favour of physically handicapped etc.—(1) There shall be reserved at the stage of Direct Recruitment- (i) in public services and posts two per cent of vacancies for dependents of freedom fighters; (i-a) in public services and posts other than Group ‘A’ posts or Group ‘B’ posts, on and from may 21, 1999 two per cent of vacancies and on and from the date on which the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependent of Freedom Fighters and Ex-Servicemen) Amendment Act, 1999 is published in the Gazette five per cent of vacant, for Ex-Servicemen; (ii) in such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from- (a) blindness or low vision; (b) hearing impairment; and (c) locomotor disability or cerebral palsy. (2) The respective quota of the categories specified in sub-section (1) shall be such as the State Government may from time to time determine by a notified order. (3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustment; if he belongs to [other Backward classes of Citizens] category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments. (4) For the purposes of sub-section (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be; Provided that at no point of time the reservation shall, in the entire strength of cadre, or service, as the case may be, exceed the quota determined for respective categories. (5) Where, due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled it shall be carried over to the next recruitment.” 16. It is not denied that the State Government has vide notification dated 31st July, 2007 identified the posts of Asstt. Prosecuting Officer to be reserved for physically handicapped persons in accordance with the Act of 1993. The petitioner, with locomotive disability assessed at 50% was eligible to be considered for appointment in the quota of physically handicapped candidates to the advertised posts. The notification issued by the State Government for respective quotas of categories in sub-section (1) of Section 3 has not been placed on record. We, therefore, proceed on the basis that there is 1% reservation on the post of Asstt. Prosecuting Officer for each of the persons sufferring from (a) blindness or low vision (b) hearing impairment and (c) locomotive disability or cerebral palsy. The petitioner suffers from locomotive disability and thus he was qualified for 1% reservation for physically handicapped person in his category in the advertised post and in case he was selected, he was to be adjusted in accordance with sub-section (3) of Section 3 in the appropriate categories to which he belongs. 17. The petitioner with locomotive disability, therefore, was entitled to 1% reservation out of 86 advertised vacancies, and which could not exceed, by one post in the advertised vacancies. He was, thereafter, required to be placed in his respective category i.e. general category for appointment by making necessary adjustments. In the present case by the time interim order was passed in Writ Petition No. 23468 of 2007 on 10.7.2008, directing that one post of Asstt. Prosecuting Officer to be left vacant within open/ general category and by the time final orders disposing of the writ petitions of 13.10.2008 were passed, the main examinations were held. In the present case by the time interim order was passed in Writ Petition No. 23468 of 2007 on 10.7.2008, directing that one post of Asstt. Prosecuting Officer to be left vacant within open/ general category and by the time final orders disposing of the writ petitions of 13.10.2008 were passed, the main examinations were held. The Commission in order to comply with the order of the High Court took a decision to call three persons out of those, who had applied and were declared successful in the main examination to be called for interview. Only two persons out of the 6 successful candidates could be appointed and the best among them in order of merit was selected and adjusted in their respective category for appointment on horizontal basis. 18. Smt. Lavlesh Singh, daughter of Shri Neeraj Kumar is sufferring with 40% disability of the lower limbs on account of polio. Shri Akhilesh Kumar Tiwari is also sufferring from 40% locomotive disability. Both these persons had higher merit than the petitioner in the preliminary examination. 19. In Shiv Prasad (Supra) the Supreme Court explained the reservation made for women candidate by “interlocking reservation” as propounded in Indra Sawhni’s case, (1992) Supp. 3 SCC 217, and in Swati Gupta Case, (1995) 2 SCC 560 , it was found that three posts in combined cadre of Associate Professor/ Asstt. Professor, one unreserved and 2 SC were available under flexible cadre structure 20% horizontal reservation for women candidates were applied to these posts. The figure came out to 0.6%, which was rounded of to 1 post. Since the respondent was found suitable, no grievance could be made against her appointment as Asstt. Professor. The Supreme Court further held that since the cadre of Asstt. Professor and Associate Professor were combined, either the petitioner or the respondent could be appointed in the general category but in view of the horizontal reservation for women respondent No. 4 could be appointed only after excluding the petitioner. Since the post was of general category, the respondent was accommodated on that post in women reservation quota and her appointment was consequently valid. Since the post was of general category, the respondent was accommodated on that post in women reservation quota and her appointment was consequently valid. In Andhra Pradesh Public Service Commission (Supra) the Supreme Court held that provisions contained in Articles 15 and 16 are merely enabling provision and hence the manner in which the State as also the Public Service Commission would comply with the constitutional requirement of Article 335 should ordinarily not be allowed to be questioned. The mandate of reservation provisions and Article 335, should be balanced and procedure evolved for laying down the mode and manner for consideration of a right such as the right under Article 16 can be interfered with only when it is arbitrary, discriminatory or wholly unfair. Unless the procedure adopted by Public Service Commission is held to be arbitrary or against the known principles of fair play, the superior courts would not ordinarily interfere therewith. 20. The Supreme Court held that shortlisting of candidates for main examination based on performance in preliminary examination is permissible, if decided on the touchstone on Article 335. The State is bound to device some procedure to shortlist the candidates considering its limited reservation. The category wise reservation is detrimental to the interest of meritorious candidates belonging to reserved categories and would give rise to the complexity since reservation to women and handicapped person is on the horizontal basis. The constitution lays down provision both for protective discrimination as also affirmative action. The reservation made for the members of scheduled castes, scheduled tribes and other backward classes is subject to Article 335 of the Constitution of India. No citizen can claim reservation as matter of right. 21. In Public Service Commission v. Mamta Bisht and others, decided on 3.6.2010, MANU/SC/0410/2010 the Supreme Court quoted with approval the method of applying horizontal reservation, explained in Rajesh Kumar Daria v. Rajasthan Public Service Commission and others, AIR 2007 SC 3127 : MANU/SC 7813/2007, as follows : “The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are ‘vertical reservations.’ Special reservations in favour of physically handicapped, women etc., under Article 16(1) or 15(3) are ‘horizontal reservations.’ 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 numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. (Vide Indira Sawhney (supra); R. K. Sabharwal v. State of Punjab ( 1995 (2) SCC 745 ); Union of India v. Virpal Singh Chauvan ( 1995 (6) SCC 684 ) and Ritesh R. Sah v. Dr. Y. L. Yamul ( 1996 (3) SCC 253 )]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of ‘Scheduled Castes-Women.’ If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.” 22. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women.” 22. In the present case the Commission made a mistake in failing to provide statutory reservation for physically handicapped persons, under the U.P. Act of 1993 as amended in 1997, at 3% reservation for physically handicapped persons, and which provides for 1% reservation for each of the person suffering from blindness or low vision; hearing impairment and locomotive disability or cerebral palsy. Both the selected persons namely respondent Nos. 3 and 4 as well as the petitioner fell within 1% reservation on the vacancy to be reserved for locomotive disability. The Commission could appoint only 1 in the 86 vacancies and thereafter place it in appropriate category. The maximum number that could be identified under Section 3 (1) (ii), in the selections was to best amongst persons, who had appeared in the preliminary examination to be called for final examination. Since the final examination was already over, the Commission did not commit any mistake in calling for 6 persons in the same ratio as the persons were called in the order of merit from amongst the main examination to interviews. In correcting the mistake the Commission did not commit any further error in complying with the order of High Court, which was not challenged and has become final by selecting the best amongst those, who had appeared in the final examination. Smt. Lavlesh Singh had added advantage of being women candidate falling in OBC category and thus both respondent Nos. 3 and 4 were appointed in preference to the petitioner, on the basis of their merit in their respective categories compared with the petitioner. 23. In the given facts and circumstances, we do not find that the Commission committed any error of law in applying the reservation for physically handicapped persons under the U.P. Act of 1993, as amended in 1997, in the selections. 24. The writ petition is dismissed. —————