JUDGMENT AND ORDER : 1. Heard Mr. CP Sharma, the learned counsel for the petitioner and Mr. N. Goswami, the learned Government Advocate appearing for the respondent Nos. 1, 2 and 3. None appears for the private respondent Nos. 4, 5, 6 and 7 despite service of notice. 2. The case of the writ petitioner in brief is that she is a Master Degree holder in Arts and has completed several courses under National Civil Defense College at Nagpur. An Advertisement was floated on 03.09.2013 (Annexure-1) by the respondent No.2 inviting eligible candidates for filling up of 5 (five) posts of Assistant Deputy Controller of Civil Defense (Junior). As per the Advertisement, one post was reserved for Scheduled Tribe (Plain) {ST (P)}, two posts for Other Backward Class (OBC) and the remaining two posts as unreserved. The scheme of selection to the post in question was by a written test comprising of General English, General Knowledge, Test of Reasoning and Disaster Management and Civil Defense Affairs subjects with 100 marks as the total marks. On the basis of the scores obtained in the written test, the candidates were to be called for the viva-voce test carrying 15 marks. The final result would be on the total marks obtained out of 100+15=115 marks with usual provision of reservation as per rule. 3. The petitioner as a general category candidate, responded to the Advertisement and sat for the written test which was held on 16.01.2014. After the written test was conducted, a list of qualified candidates was prepared by the respondent authorities wherein, the petitioner was also among those qualified in the written test. The petitioner was then given a call letter dated 17.05.2014 requiring her to appear for the viva-voce test on 24.06.2014 alongwith her testimonials specified therein. On 24.06.2014, the petitioner appeared for the viva voce test and in her own assessment, she performed well and was able to answer all the questions put to her by the Selection Board correctly. The petitioner was therefore confident that she would be selected for the post. However, when the respondent authorities published the final select on 26.06.2014, to her surprise, she found herself to be not selected. The petitioner was therefore confident that she would be selected for the post. However, when the respondent authorities published the final select on 26.06.2014, to her surprise, she found herself to be not selected. The petitioner then applied for inspection of the answer scripts by filing an RTI application and upon being given the answer scripts and other documents, she found the marks obtained by the finally selected candidates including herself in both the written examination as well as viva voce test to be in close proximity. A comparison of the marks may be presented though a chart in the following manner as follows:- Sl. No. Name Roll No. Category Quota Marks in Written Exam Total 100 marks Marks in Viva Voce Total 15 marks Total marks obtained 1. Mrinal Pathak CD-5 OBC Treated as General Candidate 64 12.3 76.3 2. Diganta Sarma CD-16 General 63 10.5 73.5 3. Raju Chaliha CD-17 OBC 56 9.7 65.7 4. L Kiran K Sinha CD-8 OBC 51 10.3 61.3 5. Chaitali Sidhanta CD-9 General 60 8.8. 68.8 4. From the marks obtained by each of the candidates as shown in the above chart, the petitioner as a general candidate, found herself to be in the second position. However, the respondent No.4 who was from the OBC category having scored the highest marks, he was adjusted against the general category quota and therefore, the petitioner became the third highest scorer of marks in the general category. Since there were only two posts reserved for the general category, the petitioner was not selected for the posts as the respondent No.5 who also from the general category had scored higher marks than the petitioner. 5. The petitioner also contends that it was unfair on the part of the Selection Board to allot her low marks in the viva voce test despite she having performed well. According to her, when she had scored 60 marks in the written test, she could not have been given only 8.8. marks out of 15 marks in the viva voce test by the Selection Board. The petitioner further contends that even if a reserved candidate scores the highest marks in the selection process, he or she should be considered only against the reserved quota otherwise, the general category candidates are bound to suffer a loss. 6. marks out of 15 marks in the viva voce test by the Selection Board. The petitioner further contends that even if a reserved candidate scores the highest marks in the selection process, he or she should be considered only against the reserved quota otherwise, the general category candidates are bound to suffer a loss. 6. It is the further case of the writ petitioner that the respondent authorities concerned while publishing the Advertisement dated 03.09.2013 failed to make reservation for women which is mandated as per the Assam Women (Reservation of Vacancies in Services and Posts) Act, 2005 Womens Reservation Act which came into force w.e.f. 18.05.2005. The petitioner contends that the respondent authorities otherwise mentioned the reservation for women candidates for filling up of the posts of Junior Assistants (LD Assistant) in a similar Advertisement published on 03.03.2013 in a local daily. Therefore, being aggrieved, she has approached this Court through the instant writ petition seeking a direction to the respondent authorities to make 30% reservation for women candidates as per Womens Reservation Act and to appoint her to the post in question. 7. In response to the writ petition, the respondent Nos. 2 and 3 have filed their affidavit-in-opposition on 11.12.2014 contending inter-alia that there were only two posts notified in the Advertisement for general category candidates and even if 30% reservation for women candidates against two posts were to be applied, the figure would only come to 0.6 post, i.e., falling short of one absolute post. Therefore, no reservation was possible against the two posts. A clarification has also been made to the Advertisement dated 03.03.2013 in respect of the posts of Junior Assistants (LD Assistants) by stating that there were four unreserved posts and therefore, 30% reservation for women out of four posts would be 1.2 post. Thus, one post was reserved for woman candidate. As for selection to the post in question, two posts were reserved for the general category. The candidate who scored the highest marks although belonging to the OBC category had to be adjusted against one post meant for the general category candidate while the second post was filled up by the respondent No.5, a general category candidate having scored the second highest marks. As for the petitioner, she scored lower marks than the two candidates and therefore, she could not be selected against the unreserved post. 8. Mr. As for the petitioner, she scored lower marks than the two candidates and therefore, she could not be selected against the unreserved post. 8. Mr. CP Sharma appearing for the petitioner submits that the respondent authorities are bound to make reservation for women candidate in terms of the Womens Reservation Act. He submits that Section 4 of the Womens Reservation Act provides that 30 % of the vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment has to be reserved for women candidates. Therefore, out of five posts of Assistant Deputy Controller of Civil Defence (Junior) advertised, at least one post is to be reserved for women candidates. Considering the marks of the petitioner, the respondent authorities by applying the Womens Reservation Act ought to have selected and appointed the petitioner. 9. Mr. CP Sharma further submits that there are two types of reservation i.e. vertical reservation and horizontal reservation. The reservation in favour of the SC, ST and OBC are reservation under Article 16 (4) of the Constitution and they are identified as vertical reservation whereas, reservation in favour of physically handicapped, women reservation etc. are reservation under Clause (1) of Article 16 of the Constitution and they are identified as horizontal reservation. Horizontal reservation cut across the vertical reservation which is in fact termed as interlocking reservation. By applying the Womens Reservation Act, out of four posts that were filled up, barring one post reserved for ST (P) which remained unfilled for want of applicants, the respondent authorities ought to have selected the petitioner and appointed her against the unreserved category, she being a woman candidate and in fact, the only woman candidate. He submits that womens reservation being horizontal reservation, it will cut across the vertical reservation. In support of his submission on horizontal and vertical reservation, Mr. CP Sharma relies upon the following judicial pronouncements:- (i) Union of India & Anr. Vs. Satya Prakash & Ors. (2006) 4 SCC 550 (ii) Ratul Kumar Das & Ors. Vs. State of Assam & Ors. 2009 (4) GLT 648 (iii) Shiv Prasad Vs. Government of India; (2008) 6 SCC 382 11. Mr. CP Sharma submits that the stand of the respondent authorities in their affidavit dated 11.12.2014 with regard to rounding off a figure is incorrect and only misconceived. (2006) 4 SCC 550 (ii) Ratul Kumar Das & Ors. Vs. State of Assam & Ors. 2009 (4) GLT 648 (iii) Shiv Prasad Vs. Government of India; (2008) 6 SCC 382 11. Mr. CP Sharma submits that the stand of the respondent authorities in their affidavit dated 11.12.2014 with regard to rounding off a figure is incorrect and only misconceived. He submits that according to the respondent authorities, since there were only two posts reserved for the general candidates and considering the percentage of reservation for women candidates, 30% of two posts will be 0.6 posts and therefore, the same not being a whole number, it was not possible to make any reservation for women candidates. Mr. CP Sharma submits that in fact by following the general principles for rounding off a figure, 0.6 posts will have to be rounded off as one post if the figure is one half or more. In case the figure is less than one half, the value will have to be ignored and in which case, there cannot be any reservation. The respondent authorities themselves having contended that 0.6 post could be reserved for women candidates, the same has only to be rounded off to one post and if one post is reserved for women candidate, the petitioner should have been selected and appointed to the post in question. In support of his submission with regard to rounding of a figure, Mr. CP Sharma has relied upon the following two decisions:- (i) Monoj Kumar Roy Vs. State of Assam & Ors. 1998 (2) GLT 421 (ii) State of U.P. & Anr. Vs. Pawan Kumar Tiwari & Ors. (2005) 2 SCC 10 . 12. Mr. N. Goswami, learned counsel appearing for the State respondents submits that the respondent authorities have not committed any mistake in not selecting the petitioner inasmuch as there were candidates who scored higher than the petitioner in the general category. He submits that considering the fact that there were only two posts reserved for general category, selection and appointment of the petitioner would amount to exceeding 50% of the posts being filled up by reserved category. He submits that the Apex Court in the case of Indra Sawny (1) Vs. Union of India reported in 1992 Suppl (3) SCC 217 has clearly laid down that reservation cannot exceed 50% of the posts to be filled up. He submits that the Apex Court in the case of Indra Sawny (1) Vs. Union of India reported in 1992 Suppl (3) SCC 217 has clearly laid down that reservation cannot exceed 50% of the posts to be filled up. He therefore submits that there is no merit in the writ petition and the same should be dismissed. 13. I have heard the submissions advanced by the learned counsels for the parties and perused the materials available on record. The question to be decided is as to whether the respondent authorities have committed a mistake in not making reservation for women candidates for the posts in question. Whether 30% womens reservation can be implemented against the five posts that were advertized to be filled up by direct recruitment. 14. The State Government in exercise of the power conferred by Section 11 (1) of the Womens Reservation Act framed the Assam Women (Reservation of Vacancies in Services and Posts) Rules, 2005 (Womens Reservation Rules). The Womens Reservation Rules came into force w.e.f. 30.11.2005. Rule 3 provides for the procedure to be followed in making a direct recruitment through the Assam Public Service Commission or Section Committee/Board. Rule 3 (3) provides that the appointing authority shall make the appointment of women candidates on 30% basis as shown in the Schedule of the Rules. The Schedule provides for breakup of percentage of 30% reservation in respect of appointment to the services and posts by direct recruitment for women candidates. Section 4 of the Womens Reservation Act provides for reservation for women in vacancies to be filled up by direct recruitment. The same may be reproduced for better appreciation as below:- "4. At the commencement of this Act, 30 percent of the vacancies in respect of all appointments to the services and posts in the establishment which are to be filled up by direct recruitment shall be reserved for the women candidates : Provided that the aforesaid reservation shall be inclusive of the reservation provided statutorily or otherwise to the Scheduled Castes, Scheduled Tribes (Plains), Scheduled Tribes (Hills). Other Backward Classes. More Other Backward Classes and persons with disabilities within the respective reserved category : Provided further that 30 percent reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of unreserved category only". 15. Other Backward Classes. More Other Backward Classes and persons with disabilities within the respective reserved category : Provided further that 30 percent reservation of the vacancies in respect of the Women for the remaining unreserved Category of candidates shall be available to the Women of unreserved category only". 15. The Apex Court in Shiv Prasad (Supra) by examining the law laid down by the Court itself in various other cases held that the reservation for women reservation for women candidates cannot be held invalid or in excess of permissible quota and that in fact, reservation policy itself makes this position clear. Paragraph Nos. 24 to 29 may be gainfully quoted as below:- "24. The next question then is : How can this woman-reservation be implemented and enforced? Whether such reservation will violate Indra Sawheny (I) and exceed 50% reservation which is maximum? Our reply is in the negative. Let us consider the issue. 25. In Indra Sawheny (I), Justice Jeevan Reddy dealt with this aspect. His Lordship observed that there are two types of reservations; (i) vertical reservations; and (ii) horizontal reservations. They must be so applied as not to exceed the percentage of reservations which is permissible under law. This can be done by 'interlocking reservations'. His Lordship proceeded to state; "812 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. 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. 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." 26. A similar question came up for consideration in Swati Gupta. There, the petitioner appeared in the Combined Pre-Medical Test (CPMT) held by the State. She was not selected. She challenged a notification of the State Government on the ground that the reservation was 65% which exceeded 50% and was thus violative of the constitutional guarantee under Articles 14, 16, 19 and 21 of the Constitution as also the ratio laid down in Indra Sawhney (I). The Government of U.P., however, issued another notification clarifying its stand on reservations. 27. In the amended notification, it was clarified that the reservations for the candidates belonging to other categories, such as, dependents of freedom-fighters, sons/daughters of deceased/disabled soldiers, physically handicapped candidates, etc. would be 'horizontal' and the candidates selected in those categories would be adjusted in the categories to which they belong, i.e. either reserved category of Schedule Castes (SC), Schedule Tribes (ST), Other Backward Class (OBC) or Open Category (OC) in 'vertical' reservation and it would not violate constitutional guarantee. 28. The Court considered Indra Sawhney (I), applied it to the case on hand and held that the submission of the State was well founded and the contention of the petitioner that the reservation violated constitutional guarantee of 50% was not well-founded. "3. The vertical reservation is now 50% for general category and 50% for Scheduled Castes, Scheduled Tribes and Backward Classes. Reservation of 15% for various categories mentioned in the earlier circular which reduced the general category to 35% due to vertical reservation has now been made horizontal in the amended circular extending it to all seats. The reservation is no more in general category. The amended circular divides all the seats in CPMT into two categories one, general and other reserved. Both have been allocated 50%. Para 2 of the circular explains that candidates who are selected on merit and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category they belong, such reservation is not contrary to what was said by this Court in Indra Sawhney." 29. Para 2 of the circular explains that candidates who are selected on merit and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category they belong, such reservation is not contrary to what was said by this Court in Indra Sawhney." 29. A similar question was raised in Anil Kumar Gupta & Ors. V. State of U.P. & Ors., Referring to Indra Sawhney (I), and Swati Gupta, the Court observed; "18. Now, coming to the correctness of the procedure prescribed by the revised notification for filling up the seats, it was wrong to direct the fifteen per cent special reservation seats to be filled up first and then take up the OC (merit) quota (followed by filling of OBC, SC and ST quotas). The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e., SC, ST and BC; 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 overall 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 per cent in favour of special categories, overall, may be satisfied or may not be satisfied.) Because the revised notification provided for a different method of filling the seats, it has contributed partly to the unfortunate situation where the entire special reservation quota has been allocated and adjusted almost exclusively against the OC quota." 16. In the present case, considering the five posts that were advertised, reservation for women candidate ought to have been done by the respondent authorities. Women reservation admittedly is horizontal reservation and by applying the interlocking reservation, if women candidates were found to be unrepresented, one woman candidate ought to have been adjusted. In the present case, considering the five posts that were advertised, reservation for women candidate ought to have been done by the respondent authorities. Women reservation admittedly is horizontal reservation and by applying the interlocking reservation, if women candidates were found to be unrepresented, one woman candidate ought to have been adjusted. The petitioner belongs to the general category and accordingly, she will have to be placed in the general category and against the quota earmarked for general category. If there are no women candidates, she will have to be adjusted against the last person selected on merit. As may be noticed, this in fact was the Apex Court held in the case of Shiv Prasad (supra) as well as in the case of Satya Prakash & Ors (supra). A Division Bench of this Court in the case of Ratul Kumar Das & Ors (supra) following the law laid down by the Apex Court held that if there is a short fall of women candidates in order of merit, the last male candidate is to be replaced by a woman candidate in order to give effect to 30% reservation of post for women candidates. On the other hand, if there already exist a woman candidate in the category concerned and if there is no short fall in the 30% of posts reserved for women candidates, there will be no question for making further adjustments beyond the percentage prescribed. 17. It may also be noticed that respondent No. 5 who is also a general category candidate scoring of 73.5 marks in total was above the petitioner. However, against the two posts reserved for general category, since one post was already taken by the respondent No. 4 an OBC category candidate who scored the highest marks and treated as a general candidate, the petitioner in view of the principle of interlocking reservation will have to replace the respondent No.5 in the select list. In short, she will have to be adjusted against the last person selected in the general category on merit. In view of such finding, reference to the other authorities relied upon by the parties is found unnecessary. 18. This Court vide order dated 17.10.2014 while issuing notice had observed that the appointment of the private respondents based on the selection held would be subject to the outcome of the writ petition. In view of such finding, reference to the other authorities relied upon by the parties is found unnecessary. 18. This Court vide order dated 17.10.2014 while issuing notice had observed that the appointment of the private respondents based on the selection held would be subject to the outcome of the writ petition. The private respondents despite service of notice have not appeared in the case. Considering the law laid down by the Apex Court as well as Division Bench of this Court, the respondent authorities have clearly failed to apply the provision of Women Reservation Act and Rules as they ought to have in making the final selection and appointment to the post of Assistant Deputy Controller of Civil Defence (Junior). 19. Under the facts and circumstances of the case and as a result of the foregoing discussions, the selection and appointment of the respondent No.5 on the basis of the select list dated 26.06.2014 is found to be vitiated and therefore, the same is set aside. In his place, the respondent authorities shall appoint the petitioner within a period of one month from the date of receipt of a certified copy of this order. It is made clear that the respondent authorities shall appoint the petitioner w.e.f the date on which the private respondents were appointed and fix her pay notionally without arrears. Her seniority in service for the purpose of promotion shall be reckoned only from the date of actual service. 20. With the above observations and directions, the writ petition stands allowed to the extent indicated. No cost.