ORDER : 1. By this petition under Article 226 of the Constitution of India, the petitioner has called in question the action of respondents in making the select list for appointment of candidates on the post of Sub Inspector (Radio) in the Police Department of Government of Madhya Pradesh. It is contended that pursuance to the advertisement issued by the Madhya Pradesh Professional Examination Board (hereinafter referred to as the Board for brevity), the petitioner and many other candidates have taken part in the written examination. Such an examination was conducted for many vacancies in different disciplines and categories in the Police force of the State of Madhya Pradesh. After the written test, a physical test was held at Bhopal, and thereafter interviews have taken place. Those who secured merit marks in all the aforesaid three tests were selected and a final result was declared. However, as against 575 vacancies advertised, only 462 candidates were selected and appointed. When the petitioner verified his final result, he could know that he has secured total 226 marks, but was not allotted any post. A similarly situated person, the respondent No. 4, who too has received total 226 merit marks in all the aforesaid three test, was allotted the post of Sub Inspector (Radio). This being so, the petitioner initially challenged the action of the respondents in respect of appointment of respondent No. 4 only. Later on, the facts came to the notice of the petitioner that selection was made in respect of certain other candidates and some of the candidates though were not eligible, were said to be selected superseding the claim of the petitioner, therefore, exhaustive amendments were made in the writ petition. The said selected candidates were made party and claims were made for appointment on the post of Sub Inspector (Radio). 2. It is contended in the writ petition that though the posts as were mentioned in the broacher of advertisement were reserved for certain categories, when the persons were not found in the said category, the posts were required to be filled in from amongst the persons of the General category. This being so, though the petitioner was a candidate of General category, having secured sufficient marks but was not offered any post. This being so, though the petitioner was a candidate of General category, having secured sufficient marks but was not offered any post. Therefore, his contention was that such a selection was vitiated and the appointment of one of such reserved category candidates against the vacancy of General category was liable to be quashed. 3. This Court has entertained the writ petition, allowed the amendment in the same and thereafter issued the notices to the respondents. Only the respondents No. 1 and 2 have filed their return and have contested the matter. The respondents have categorically contended that there were 30 posts of Sub Inspector (Radio), out of which 15 were in the General category and rest of the posts were distributed to the Scheduled Caste, Scheduled Tribes and Other Backward Classes. According to them, six posts were reserved for the Scheduled Tribe category, five posts were reserved for the Scheduled Caste category and four posts were reserved for Other Backward Class category. Thus, a vertical reservation, was made. Further, a horizontal reservation was prescribed, in each aforesaid category. It is described by them that out of fifteen posts in General category eight were open category, five posts were reserved for female candidates, one post was reserved for Police personnel and ex-serviceman. Similarly in the Scheduled Tribe community, three posts were in the open category, two posts were reserved for female candidates and one post was reserved for ex-serviceman. In Scheduled Caste community, two posts were in the open category, two posts reserved for the female candidates and one post was reserved for the ex-serviceman. Almost, similar was the position in the Other Backward Class category, where three posts were reserved in open category and one for the female candidate. It is contended by the respondents in their return that when the final select list was made available, keeping in view the option for the particular post, the claims were considered. Out of nine posts available in General category including one which was reserved for the police personnel, selection was made. There were three posts in the open category for the Scheduled Tribe candidates and they were also taken into consideration. Out of nine posts available in General category including one which was reserved for the police personnel, selection was made. There were three posts in the open category for the Scheduled Tribe candidates and they were also taken into consideration. There were two posts for Scheduled Caste category and three posts for Other Backward Class category available as open and, therefore, keeping in view one post for Scheduled Caste available in female category, total for eighteen posts, the selection was made. It was considered that Other Backward Class candidates who have achieved more marks than the General category candidates, were said to be selected for the posts in General category on account of their merits. Eight posts of General category were filled in by making selection of three General category candidates and five Other Backward Class candidates on account of their merits. One Ranjeet Gupta was selected as unreserved against the vacancy of Police person in General category. Similarly, it is their contention that the Scheduled Caste candidates and Other Backward Class candidates as well as Scheduled Tribe candidates were selected against the vacancies available for them. 4. It is contended by the respondents that a second phase of selection was started as the female candidates were not made available in particular category. There were five posts of General category reserved for female candidates, but none of the candidates was selected in the merit list. Similarly for the Scheduled Tribe, two posts were reserved for female candidates and none was found in the select list. In Scheduled Caste community, out of two posts only one could be filled in by selection of a Scheduled Caste female candidate and one vacancy was available. For the Other Backward Class, none was found against one vacancy of female candidates in the select list. Accordingly, there were nine vacancies reserved for female candidates in different categories referred to herein above which become available to be filled in by the male candidates of the same category. It is contended that in terms of the provisions made in the Rules, if sufficient number of candidates are not made available on vacancies reserved horizontally and compartment-wise, the remaining vacancies were filled up by male candidates of the same categories, as a result, again the selection was started. It is contended that in terms of the provisions made in the Rules, if sufficient number of candidates are not made available on vacancies reserved horizontally and compartment-wise, the remaining vacancies were filled up by male candidates of the same categories, as a result, again the selection was started. Five vacancies of General categories reserved horizontally for the female candidates, were to be filled in by male candidates of the said category. It was found that there were seven candidates who have obtained 226 marks in all the three tests. Thus, it was decided that the marks obtained in the written examination would be taken into consideration for preparing the merit list and in case it is found that two candidates have secured the same marks in the written examination, the seniority was to be fixed on the basis of their date of birth. This being so, again when the selection was started, the candidates who have obtained more marks in the written examination, were taken note of, and were appointed on the vacancies. Two candidates of General category were appointed on the vacancies so made available. The petitioner was one who was at Serial No. 5 of those seven candidates and thus, could not be appointed against the vacancies of General category made available on account of non-availability of the female candidates. In the third scan, when the posts were made available on account of non-availability of ex-serviceman candidate, which reservation was also horizontal and compartment-wise, the posts were to be filled in by appointment of candidates of the same category. When this was again done, there was only one post for the General category against which one Shri Ajay Singh was selected. One Shri Anurag Jharia was selected from amongst the Scheduled Caste category and one Shri Ram Singh Valke was selected from amongst the Scheduled Tribe category. This being so, according to the respondents that the selection was rightly done and no wrong was committed. The respondents thus, contended that selection being fully transparent, need no interference by this Court. 5. A rejoinder is filed by the petitioner contending inter-alia that the female candidates were not available in General category and all five posts reserved for the female candidates in General category were to be filled in only and only by the male candidate of General category. 5. A rejoinder is filed by the petitioner contending inter-alia that the female candidates were not available in General category and all five posts reserved for the female candidates in General category were to be filled in only and only by the male candidate of General category. There was no question of merit selection of any other category candidate against that vacancy as the same was not permissible in terms of the Rules referred to herein above which was made applicable by the respondents. It is, vehemently, contended by the petitioner that one Shri Pramod Kumar Jatav was said to be selected on account of his merit as unreserved candidates against the vacancies converted for filling from the male candidates as the female candidates were not available. This Promod Kumar Jatav belongs to the Scheduled Caste community and he could at the best be accommodated against the vacancy of ex-serviceman candidate as no ex-serviceman candidate was available. However, instead of selecting the said Promod Kumar Jatav in that category, he was selected against the post of unreserved female category which was not permissible. In fact, in the said place, one Shri Ajay Singh should have been selected and the next candidate was the petitioner, therefore, the petitioner should have been selected against the vacancy of ex-serviceman in General category. Because of such an error committed by the respondents, the right of selection accrued to the petitioner has been denied. The respondents have denied such allegations by filing additional return to the rejoinder. 6. After hearing the parties at length, this Court was of the opinion that the respondents should give specific reply to such allegations and, therefore, the respondents were called upon to file an additional affidavit which they have filed on 18-6-2013. The same facts have been reiterated by the respondents though they have annexed with it several decisions of the Apex Court rendered in the same subject. 7. Heard learned counsel for the parties at length and perused the record. 8. It is not in dispute at all that in first scan, 18 candidates were selected. Some of the candidates in General category were left out as the reserved category candidates, particularly belonging to Other Backward Class have achieved more merit marks than the General category candidates. 7. Heard learned counsel for the parties at length and perused the record. 8. It is not in dispute at all that in first scan, 18 candidates were selected. Some of the candidates in General category were left out as the reserved category candidates, particularly belonging to Other Backward Class have achieved more merit marks than the General category candidates. Because of these reasons in the first scan, eight open posts in General category were filled in by five Other Backward Class candidates and three from General category candidates. To facilitate, the Table (iv) of respondents as has been shown in the return is reproduced as under:- S. No. Name of Candidate Total Marks Category/Class Regarded as Reason 1. Dharmendra Singh Gaur 251 UR/Male UR/Male -- 2. Dhirendra Singh 248 OBC/Male UR/Male Due to Merit 3. Aditya Sharma 248 UR/Male UR/Male -- 4. Afzal Khan 246 UR/Male UR/Male -- 5. Bharat Singh 244 OBC/Male UR/Male Due to Merit 6. Anish Rajput 243 OBC/Male UR/Male Due to Merit 7. Malay Mahant 241 OBC/Male UR/Male Due to Merit 8. Sachin Nagre 239 OBC/Male UR/Male Due to Merit 9. Ranjit Gupta 229 UR/Police UR/Police -- 10. Raj Kumar Singh Chahar 226 OBC/Male OBC/Male -- 11. Pramod Kashyap 223 SC/Male SC/Male -- 12. Amit Parihar 218 SC/Male SC/Male -- 13. Ajay Singh Yadav 218 OBC/Male OBC/Male -- 14. Santosh Singh Gurjar 213 OBC/Male OBC/Male -- 15. Vijay Singh Chauhan 210 ST/Male ST/Male -- 16. Manish Gehlot 209 ST/Male ST/Male -- 17. Khelan Singh Karihar 192 ST/Male ST/Male -- 18. Upasna Tagde 190 SC/Female SC/Female -- This makes it clear that when the first scan was done for eighteen candidates in open category posts in all the categories including the reserved categories, only three candidates of General category were selected on account of merit. The second scan was done for filling up the posts reserved for female candidates on account of non-availability of the said candidates. In the second scan, the respondents could not have selected said Pramod Kumar Jatav, a candidate of Scheduled Caste category for his appointment as Sub Inspector (Radio) against the vacancy of female candidate in General category as it was not permissible in accordance to the Rules. All the five vacancies reserved for the female candidates of General category, were to be filled in by male candidates of General category on account of non-availability of the female candidates. All the five vacancies reserved for the female candidates of General category, were to be filled in by male candidates of General category on account of non-availability of the female candidates. In such a case in place of said Shri Promod Kumar Jatav, in fact, the name of Shri Sanjeev Pandey should have been mentioned and in place of name of Shri Sanjeev Pandey, name of Shri Ajay Singh should have been mentioned. This Pramod Kumar Jatav could have been selected against the vacancy of Scheduled Caste female candidates because according to the tabulation, only one vacancy was available. Against that vacancy, Jitendra Shakya was said to be selected, who otherwise could not have been selected in the said place. In such place, the name of said Pramod Kumar Jatav should have been mentioned as he had duly obtained more merit marks than Jitendra Shakya. To demonstrate this, Table (vii) produced by the respondents in their return is required to be reproduced as under:- S. No. Name of Candidate Roll No. Category Class Total Marks Marks in written Examination Date of Birth Remark 1. Prashant Singh Parihar 736430 UR/Nil 238 185 18-12-1989 -- 2. Gajendra Singh Raghuwanshi 745169 UR/Nil 235 179 18-6-1987 -- 3. Vikas Upadhyay 723734 UR/Nil 234 182 14-6-1985 -- 4. Pramod Kumar Jatav 723744 SC/Nil 231 185 3-8-1985 Regarded as UR/Nil Due to Merit - Note by Court - could not be because of Horizontal reservation 5. Sanjeev Pandey 702534 UR/Nil 226 189 1-3-1989 -- 6. Jitendra Shakya 723269 SC/Nil 218 169 10-10-1986 -- 7. Manoj Kumar Sahu 702676 OBC /Nil 213 179 17-11-1978 8. Nitin Singh Kakodiya 702567 ST/Nil 191 154 28-7-1989 -- 9. Amit Sastya 736580 ST/Nil 184 149 24-12-1984 -- 9. This makes it clear that while conducting the second scan, the respondents have committed an illegality, inasmuch as, they themselves have violated the Rules which according to them was applicable. The next consideration was to be done in third scan for the vacancies which became available on account of non-availability of ex-serviceman candidate. As has been mentioned herein above, said Shri Ajay Singh who was selected against the said vacancy of General category was to be selected in the second scan at Serial No. 5 and in that situation, the next candidate available in General category was the petitioner who too has obtained 226 merit marks. As has been mentioned herein above, said Shri Ajay Singh who was selected against the said vacancy of General category was to be selected in the second scan at Serial No. 5 and in that situation, the next candidate available in General category was the petitioner who too has obtained 226 merit marks. That being so, since he has obtained 182 marks in the written examination as has been mentioned by the respondents themselves, the petitioner would have become next eligible candidate to be appointed against the said vacancy in General category. It is not disputed that the reservation of the post of ex-serviceman was also horizontal and compartment-wise. In fact, the name of petitioner should have been mentioned at Serial No. 1 in the said category, the name of said Jitendra Shakya should have been mentioned at Serial No. 2 being the candidate of Scheduled Caste community and Shri Ram Singh Valke was rightly selected from amongst the Scheduled Tribe category. The candidate who was said to be selected from amongst the Scheduled Caste community, namely, Shri Anurag Jharia, the respondent in the present writ petition, was not at all entitled to be selected as he has obtained lesser marks obtained by Jitendra Shakya. It appears that to facilitate one of the Scheduled Caste category candidate, such a scan was not rightly done and the petitioner was denied the selection. From the aforesaid discussions, it is clear that illegality was committed by the respondents in making selection of a Scheduled Caste category candidate though he was not eligible to be selected. 10. Much is said about the power of judicial review to be exercised by this Court, by the respondents and they have placed reliance on various cases of the Apex Court. It is contended by them that this Court would not sit as a Selection Committee, an expert body to make selection and will not exercise its extraordinary power to examine and screen the selection made by a Selection Committee. Relying on several decisions, the respondents have contended that it is not open to this Court to probe in the matter of selection. After careful examination of facts, it is found that in none of the cases, the Apex Court has limited the power of this Court saying that in any case in any circumstances, this Court would not exercise its power of judicial review. After careful examination of facts, it is found that in none of the cases, the Apex Court has limited the power of this Court saying that in any case in any circumstances, this Court would not exercise its power of judicial review. In the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Others, (2007) 8 SCC 785 while dealing with the reservation, the Apex Court has specifically held that vertical reservation is only a reservation under Article 16(4) of the Constitution of India and horizontal (Special) reservation is under Article 16(1) or Article 15(3) of the Constitution of India. While reservations made on social basis are not to be changed, the horizontal reservations are compartment-wise and in such circumstances, if the Rules permit, the vacancies available in horizontal reservation are to be filled in by similar category candidates. For example, if the vacancies are horizontally reserved for the female candidates and the female candidates are not available, then they are to be filled in by male candidates of the same category. Similar is the view expressed in several decisions where such a situation is examined by the Apex Court. It is the case of the respondents themselves that the Rules permit that if the reservations are made horizontally and the vacancies are kept available for a particular gender, if the selected candidate of that gender is not available, the post would be converted to be filled in by another gender candidate of the same category. This being so, only this much was required to be done by the respondents that when five posts of female candidates in General category were not filled in, on account of non-availability of female candidates only five male candidates of General category were to be considered and appointed. There was no question of merit marks assignment to any candidate and to appoint a candidate of a different category such as Scheduled Caste or Scheduled Tribe, treating him qualified in the General category. This would not be permissible in view of the law laid down by the Apex Court in the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission (supra). 11. In view of the discussions made herein above, the writ petition is allowed. The appointment and selection of respondent No. 16 as Sub Inspector (Radio) done against the post of ex-serviceman candidate cannot be upheld. 11. In view of the discussions made herein above, the writ petition is allowed. The appointment and selection of respondent No. 16 as Sub Inspector (Radio) done against the post of ex-serviceman candidate cannot be upheld. The same is required to be cancelled. Instead of said Anurag Jharia, Jitendra Shakya said to be selected on the post of Sub Inspector (Radio) against the vacancy of female candidate in that category would be treated to be selected and appointed against the vacancy of ex-serviceman in the same category. Pramod Kumar Jatav said to be selected as General category candidate on account of merits would be treated to be selected and appointed against the vacancy of Scheduled Caste female in place of said Jitendra Shakya. In his place, Shri Sanjeev Pandey said to be selected in General category against the vacancy of female candidate in Genral category would be treated to be selected and in place of Sanjeev Pandey, Ajay Singh said to be selected and appointed as Sub-Inspector (Radio) in General category against the post of ex-serviceman would be treated to be selected and appointed against the post reserved for female candidates in General category. In the vacancy so available in General category on account of non-availability of the ex-serviceman, the appointment be given to the petitioner. Needless to say, since the appointment was not given to the petitioner on account of folly on the part of respondents, the petitioner would be treated to be appointed from the day one when other candidates were appointed and would also be granted seniority of the said post from that day in appropriate manner. However, the petitioner would be entitled to pay and allowances from the day he joined the services after the appointment. Let the aforesaid exercise be completed within a month from the date of receipt of certified copy of the order passed today and this order be strictly complied with. It will be open to the respondents No. 1 and 2 to accommodate the respondent No. 16, if any vacancy is available on the said post in his category, which has not been filled in. 12. The writ petition is allowed to the extent indicated hereinabove. However, there shall be no order as to costs.