JUDGMENT 1. - The only grievance raised in the petition, is that the Rajasthan Public Service Commission (for short 'Commission'), accorded reservation in excess to female candidates in the recruitment process for the post of Teacher Grade-III in response to the advertisement dated 2nd June, 2004; which has resulted into non-selection of the petitioner. 2. Shorn off unnecessary details the skeletal material facts essential for appreciation of the controversy raised herein are that the respondent-Commission vide advertisement dated 2nd June, 2004, invited applications from eligible candidates for appointment to the post of Teacher Grade-III under the Rajasthan Panchayati Raj Rules, 1996 (hereinafter referred to as 'the Rules of 1996', for short), for recruitment in total 25712 vacant posts. The advertisement also indicated number of vacancies reserved for various categories including women. 3. Mr. Ashok Gaur, Senior Advocate, appearing for the petitioner, referring to the contents of the additional documents placed on record along with the miscellaneous application number 57944 of 2014; asserted that in response to an application under Right to Information Act, 2005; the respondent-Commission furnished the information of the women candidates accorded appointments. On the conclusion of the recruitment process as a consequence of the advertisement dated 2nd June, 2004; for the post of Teacher Grade-III, the number of women candidates in General, Scheduled Caste, Scheduled Tribe and Other Backward Class, as information furnished, which reads thus:- fo"k;%& lwpuk dk vf/kdkj vf/kfu;e] 2005 ds rgr lwpuk miyC/k djok;s tkus ds lEcU/k esaA lanHkZ% r`rh; Js.kh v/;kid 2004 ds laca/k esaA mijksDr fo"k;kUrxZr funsZ'kkuqlkj ys[k gS vki }kjk pkgh xbZ lwpuk fuEukuqlkj gS& fcUnq la[;k&1 r`rh; Js.kh v/;kid&2004 ds ifj.kke ds vUrxZr vkj{k.k ls vf/kd p;uhr efgykvksa dh la[;k fuEukuqlkj gS p;uhr vH;fFkZ;ksa dh oxZokj lwpuk fuEukuqlkj gS& GEN FEM 1445 SC FEM 200 ST FEM 708 OBC FEM 1 fcUnq la[;k&2 fnukad 10-01-2013 dks tkjh ijh{kk fujLr dj fn;k x;k gSA vr% lwpuk miyC/k djk;k tkuk laHko ugha gSA ;fn vki mijksDr lwpuk ls larq"V ugha gSa rks vki i= ds tkjh gksus dh fnukad ds 30 fnol ds Hkhrj “ izFke vihy “ vk;ksx ds izFke vihy vf/kdkjh lfpo] jktLFkku yksd lsok vk;ksx] vtesj ds le{k izLrqr dj ldrs gSaA 4. According to the learned counsel, from a glance of the information furnished by the respondent-Commission, it is an admitted fact that 1445 women candidates in General Category, 200 women candidates in Scheduled Caste Category, 708 women candidates in Scheduled Tribe Category, and 1 woman candidate in OBC Category, have been accorded appointment in excess to the reservation prescribed under the law. The details of cut off marks with reference to each category has also been furnished along with the details of date of birth of the concerned candidates. 5. The apprehension of the petitioner, therefore, stands proved in view of the admission by the respondent-Commission as is evident from the information furnished, which is available on record. Thus, for the illegality committed by the respondent-Commission, the petitioner has been deprived of appointment. 6. It is asserted that women candidates are entitled to horizontal reservation and not vertical reservation, and therefore, the respondent-Commission committed a manifest illegality while according vertical reservation to the women candidates, which has resulted into excess reservation in favour of women candidates depriving the petitioner of his fundamental right of appointment to public service. 7. Learned counsel would further submit that the correct procedure which ought to be applied while according horizontal reservation, is no more res-integra, as has been declared by the Hon'ble Apex Court of the land in the case of Anil Kumar Gupta (supra), wherein the Hon'ble Supreme Court in no uncertain terms held that the candidates of social/vertical reservation category cannot be denied reservation while applying special/horizontal reservation. If the candidates belonging to special/horizontal reservation category have been selected on the basis of their merit applying the vertical/social reservation, no further question for their reservation would arise. 8. It is further urged that the principle has been reiterated by the Hon'ble Supreme Court in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission & Ors.: (2007) 8 SCC 785 ; by a Larger Bench, and therefore, the defence put forth by the respondent-Commission that their action was justified according to the prevailing practice in vogue until declaration of the law in the case of Rajesh Kumar Daria (supra), is absolutely misconceived and misleading. 9. 9. The plea of delay and laches raised on behalf of the respondent-Commission is sought to be explained in view of the fact that the respondent-Commission has accorded appointment to several other candidates, who were similarly placed as the petitioner and this fact would be evident from the result declared on 10th January, 2013, which has been placed on record as Annexure-R/7 along with the rejoinder filed on behalf of the petitioner with reference to the same recruitment process of the year 2004, involved herein. 10. The same controversy also fell for consideration of this Court in the case of Naresh Kumar Sharma & 3 Ors. v. State of Rajasthan & Anr.: 2012 (1) WLC (Raj.) 538 . Affirming the opinion, the Division Bench of this Court in D.B. Civil Special Appeal (Writ) Number 1213 of 2012; vide judgment and order dated 28th August, 2013, relied upon the opinion of Supreme Court in the case of Anil Kumar Gupta (supra). The SLP preferred by the respondent-Commission has also been declined. In order to fortify his submissions, reliance is placed on the opinion of the Hon'ble Apex Court of the land in the case of Anil Kumar Gupta v. State of U.P.: (1995) 5 SCC 173 , P.V. George & Ors. v. State of Kerela & Ors.: (2007) 3 SCC 57 and Naresh Kumar Sharma & 3 Ors. v. State of Rajasthan & Anr.: (2012) 1 WLC 538 . 11. Per contra, Mr. S.N. Kumawat, learned counsel appearing on behalf of the respondent-Commission, reiterating the stand in the counter-affidavit while supporting the action of the respondent-Commission in declining the claim of the petitioner, asserted that there is no illegality in the action allegedly for having accorded reservation in excess in favour of the women candidates. 11. Per contra, Mr. S.N. Kumawat, learned counsel appearing on behalf of the respondent-Commission, reiterating the stand in the counter-affidavit while supporting the action of the respondent-Commission in declining the claim of the petitioner, asserted that there is no illegality in the action allegedly for having accorded reservation in excess in favour of the women candidates. It was vehemently argued that the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra), dealt with the policy of reservation in the matter of admission to medical course issued by the Government on 17th May, 1994, which contemplated 65% of reservation in various categories including Hill regions, Uttaranchal regions, Real department of freedom fighters etc., whereas in the instant case at hand, the issue is with reference to appointment to public service, governed by a set of Statutory Rules, and therefore, the law declared by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra), was not the principle propounded on issue involved in the instant writ application. Therefore, the principle is not attracted in the matters of appointment governed by the Statutory Recruitment Rules. The action of the respondent-Commission while according reservation to women candidates as per practice in vogue cannot be faulted. Further, after a declaration of the law by the Hon'ble Supreme Court, the respondent-Commission has rectified the mistake, and therefore, the claim of the petitioner in the instant case at hand cannot be sustained. 12. It is further contended that the opinion in the case of Naresh Kumar (supra), is also of no help to the petitioner for the same Coordinate Bench of this Court made a clarification in the case of Jagram Bairwa v. State of Rajasthan decided on 10th April, 2013 , observing that the judgment in the case of Naresh Kumar Sharma (supra), would have no application for the recruitment of year 2004, but would be in respect of recruitment of year 2006 for the post of Teacher Grade-III (Primary and Upper Primary) only. 13. It is also contended that a Division Bench of this Court in the case of Ramzan Ali & Anr. v. State of Rajasthan & Ors. 13. It is also contended that a Division Bench of this Court in the case of Ramzan Ali & Anr. v. State of Rajasthan & Ors. (D.B. Civil Writ Petition No.8637 of 2007), decided on 29th February, 2008 ; accepted the plea that the action taken by the respondent-Commission while according reservation in the matter of women candidates until declaration of law by the Hon'ble Supreme court in the case of Rajesh Kumar Daria (supra), is legal and valid. In order to support of his submissions, reliance has been placed on the opinion of the Division Bench of this Court in the case of Hari Om Awasthi & Ors. v. Rajasthan Public Service Commission & Ors.: (2003) 3 WLC (Raj.) 551 . 14. I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 15. The submissions made on behalf of the respondent-Commission in an attempt to distinguish the controversy raised in the instant case at hand for the issue involved herein is with reference to appointment to public service whereas the principle enunciated by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra), was with reference to policy of reservation in the matter of admission to Medical Course; is absolutely misconceived and misleading. In the case of Anil Kumar Gupta (supra), the Hon'ble Supreme Court in no uncertain terms held that the proper and correct procedure while implementing reservation is to fill up the open category quota (50%) on the basis of merit. The second step thereafter is to fill up each of the social reservation quotas i.e. Scheduled Caste, Scheduled Tribe and Other Backward Classes, and the third step would be to determine the number of candidates belonging to these special/horizontal reservation. In case, the quota prescribed for horizontal reservation is already satisfied, no further reservation is to be accorded to the category of candidates belonging to horizontal reservation. 16. The principle has been reiterated in Rajesh Kumar Daria (supra), explaining the difference between vertical/social reservation and horizontal/special reservation. The social reservations in favour of SC/ST/OBC under Article 16(4) of the Constitution are 'vertical reservations' whereas special reservations in favour of physically handicapped, women etc. under Article 16(1) and/or 15(3) of the Constitution are 'horizontal reservations'. 16. The principle has been reiterated in Rajesh Kumar Daria (supra), explaining the difference between vertical/social reservation and horizontal/special reservation. The social reservations in favour of SC/ST/OBC under Article 16(4) of the Constitution are 'vertical reservations' whereas special reservations in favour of physically handicapped, women etc. under Article 16(1) and/or 15(3) of the Constitution are 'horizontal reservations'. In the case of 'vertical reservation' under Article 16(4) of the Constitution, the candidates belonging to SC/ST/OBC may compete for non-reserved posts and if they are successful on their merit, their numbers will not be counted against the quota reserved for respective category i.e. SC/ST/OBC. 17. In the case of 'horizontal/special reservation', the principle, which is applicable to 'social/vertical reservation', is not applicable. Where horizontal reservation for women is provided within the social reservation for the respective category; the procedure for filling up the quota for the relevant category is, in order of merit and then, to determine the number of candidates belonging to the special reservation group and social reservation. In case, number of women in such list is satisfied, there will be no question for further selection towards special/horizontal reservation quota. It is only the shortfall of the requisite number of the women of the social/vertical reservation, who by virtue of special/horizontal reservation would be accommodated displacing the corresponding numbers of the candidates from the bottom of the list of the concerned category i.e. SC/ST/OBC as the case may be. Thus, women candidates selected on merit out of the vertical reservation quota will be counted against the horizontal reservation for women. 18. From the materials available on record, it is further reflected that the respondent-Commission in compliance of the direction issued in the case of Naresh Kumar Sharma (supra); on a representation made by one Piyush Sharma and others, revised the select list of the recruitment process involved in the instant case at hand on 10th January, 2013, as would be evident from document Annexure-R/7, placed by the petitioner along with the rejoinder, which is reflected in the information published/uploaded on the website of the respondent-Commission, calling upon the candidates declared successful therein, to download the detailed application form, from the website of the respondent-Commission, and send the application form along with the required certificates to reach the office of the respondent-Commission on 21st January, 2013. Thus, the ground of delay as pleaded on behalf of the respondent-Commission has no substance. Thus, the ground of delay as pleaded on behalf of the respondent-Commission has no substance. 19. The legal position with reference to applicability of doctrine of 'prospective overruling' is no more res-integra. The doctrine of 'prospective overruling' is applied to overcome the interest of the citizens, who may be adversely affected, but then power is to be exercised in the clearest possible terms as has been held by the Hon'ble Supreme Court in the case of P.V. George & Ors. (supra). The judgment in the case of Naresh Kumar Sharma (supra), was affirmed by the Division Bench of this Court in D.B. Civil Special Appeal (Writ) Number 1213 of 2012 (Rajasthan Public Service Commission v. Naresh Kumar Sharma & Ors.), decided on 21st August, 2013 . Moreover, a glance of the directions made in the case of Naresh Kumar Sharma (supra), would reveal that those directions are in consonance with the policy of reservation as well as law declared by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra). 20. Furthermore, the law declared by a Court will have a retrospective effect, if not otherwise stated to be shown specifically. Hence, the principle of law declared by the Hon'ble Supreme Court in the case of Anil Kumar Gupta (supra), held the field while the respondent-Commission undertook the recruitment process in the year 2004 involved herein. A Division Bench of this Court while dealing with somewhat similar controversy on a survey of several earlier opinions of the Hon'ble Supreme Court, including in the case of Anil Kumar Gupta (supra), in a batch of intra-court appeals, lead case being D.B. Civil Special Appeal (Writ) No.472/2013 - Neelam Sharma v. State of Rajasthan & Ors. , held thus:- "3. The principle relating to horizontal reservation was explained by the Supreme Court in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 (para 812) as under:- "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 interlocking 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 interlocking 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 SC Category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) 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." 4. A special reservation for women in respect of employment is made under Article 15(3). It is different from social reservation made under Article 16(4). The method of implementing special reservation, which is a horizontal reservation has been well explained by the Supreme Court in Anil Kumar Gupta v. State of UP (1995) 5 SCC 173 . (Para 18) as under:- " The proper and correct course is to first fill up the O.C. quota (50%) on the basis of merit: then fill up each of the social reservation quotas, i.e., S.C., S.T. and B.C; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an over-all horizontal reservation - no further question arises. 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. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.)" 5. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen percent in favour of special categories, overall, may be satisfied or may not be satisfied.)" 5. The Supreme Court again in Rajesh Kumar Daria v. Rajasthan Public Service Commission (2007) 8 SCC 785 which was also a case from the State of Rajasthan has explained the method of implementing special reservation for women as under:- "9. 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 Articles 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'. 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. Let us illustrate by an example: If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC women candidates, then there is no need to disturb the list by including any further SC women candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four women SC candidates. [But if the list of 19 SC candidates contains more than four women candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess women candidate on the ground that 'SC-women' have been selected in excess of the prescribed internal quota of four.]" 6. The Division Bench of this High Court at Jodhpur in Smt. Megha Shetty v. State of Rajasthan 2015 Volume (1) WLC (Rajasthan) 761 has already dealt with exactly the same issue raised in the present bunch of appeals. The Division Bench of this High Court at Jodhpur in Smt. Megha Shetty v. State of Rajasthan 2015 Volume (1) WLC (Rajasthan) 761 has already dealt with exactly the same issue raised in the present bunch of appeals. The Division Bench relying upon the above-referred decisions of the Supreme Court has held that in the event of woman candidate belonging to OBC category on securing more marks than the woman candidate of general category finds a position in the select list of candidates of general category, the same cannot be treated as migration. And this decision of the Division Bench is binding on us with which we also fully agree. It is also to be noted that none of the writ petitioners/respondents herein who are women of general category has secured more marks than the women candidate of OBC category selected in open category. The select list of women candidates prepared by the Rajasthan Public Service Commission is strictly in accordance with the law explained by the Supreme Court." 21. Thus, on a cumulative consideration of the facts, circumstances and materials available on record, it is evident that excessive reservation was accorded to women candidates by the respondents in the recruitment to the post of Teacher Grade-III in response to the advertisement dated 2nd June, 2004. It is also not disputed that in the matters involving the same recruitment process in response to the same advertisement dated 2nd June, 2004, the select list has been revised and successful candidates have been accorded appointments, as would be evident from document (Annexure-R/7), placed on record along with the rejoinder, which is of 10th January, 2013, as reflected from the information published/uploaded on the website of the respondent-Commission. Therefore, the claim of the petitioner cannot be declined on the ground of delay. Moreover, the petitioner instituted the writ application in the year 2005 itself. 22. In the result, the writ application succeeds and is hereby allowed. 23. The respondents are directed to consider the case of the petitioner for appointment in accordance with his merit position as indicated by the respondent-Commission while forwarding the list of successful candidates with the recommendations for appointment, and accord him appointment, if he is otherwise found suitable. The petitioner would be accorded the placement according to his merit position in the select list forwarded by the respondent-Commission. The petitioner would be accorded the placement according to his merit position in the select list forwarded by the respondent-Commission. However, in view of the factual matrix, since the candidates have already been accorded appointments, this Court deems just and proper to direct the State-respondents to accommodate the petitioner without disturbing the selections and appointments already made. 24. It is further clarified that the seniority of the petitioner would be reckoned for all the purposes from the date of actual appointment. 25. No costs.Writ Petition Allowed With Direction To Reckon His Seniority From Date of Appointment. *******