JUDGMENT : Soumen Sen, J. 1. The appeal is arising out of an order passed by the learned Single Judge on 11th December, 2023 in a writ petition in which the appellant has questioned the selection of the private respondent to the Unreserved PWD-LV category. 2. Briefly stated, the petitioner participated in the recruitment process in terms of the Notification no. REC/2023/01 under Unreserved PWD-LV (in short “person with disability – blindness and low vision) in the post of Junior Engineer (Civil) Gr.II. There was only one vacancy for the said post. Ahed Reja, the private respondent applied under OBC-A category. The appellant and Reja both declared themselves as PWD-LV at the time of online submission of the application form. Reja in his application has applied for the post of Junior Engineer (Civil) Gr.II and upon consideration of the qualification of both the candidates and on the basis of the computer based test (CBT) both the candidates were called for interview. Reja scored 66.667 marks whereas the appellant secured 55.667 marks. On the basis of the results appointment was given to Reja as he secured more marks than the appellant. 3. This selection was under challenged in the writ petition. 4. The learned Counsel appearing on behalf of the appellant submits that the report filed by the Transmission Company would reveal that for the post of Junior Engineer (Civil) Gr.II there was only one vacancy under Unreserved PWD-LV (Person with disability – blindness and low vision) category and for the said posts only two candidates were claimed to be eligible. The learned Counsel has submitted that in the notification it has been specifically mentioned that in case of non-availability of qualified Unreserved PWD-LV candidate the vacancy would be filled up by PWD candidates of other category as per merit. Ahed Reja belonged to OBC-A category. The said category was filled up by five candidates in order of merits from the OBC-A candidates. 5. It is submitted that in terms of the decision of the Hon’ble Supreme Court in Indra Sawhney & Ors. v. Union of India & Ors., reported in 1992 Supp (3) SCC 217 the private respondent is not entitled to be considered as the appellant should be considered for horizontal reservation and not vertical reservation. 5. It is submitted that in terms of the decision of the Hon’ble Supreme Court in Indra Sawhney & Ors. v. Union of India & Ors., reported in 1992 Supp (3) SCC 217 the private respondent is not entitled to be considered as the appellant should be considered for horizontal reservation and not vertical reservation. Since Reja applied under the OBC-A category his candidature should be considered under that category only and not under Article 16(1) of the Constitution of India which is exclusively reserved for physically handicapped candidates. It is submitted that since Reja did not apply under Unreserved PWD-LV category, his candidature could not have been considered under the said category and migration of Reja to the said category could be in violation of the recruitment rules and the decision of the Hon’ble Supreme Court in Indra Sawhney (supra). 6. It is submitted that if Reja had declared at the time of online submission of application form that he belongs to OBC-A Unreserved PWDLV category then the candidature of Mr. Reja is liable to be cancelled on the basis of declaration mentioned in the prescribed online application form as there was no post for OBC-A PWD-LV in the recruitment notification published by the Transmission Company. Mr. Reja was not within the first five candidates for the post of OBC-A category and therefore his application could not have been considered for any other category. It is argued that in view of the judgment in Indra Sawhney (supra) “the reserved category candidates SC/ST/OBC can be entitled to get the post of unreserved category on the basis of merit” would not apply to the single unreserved posts for PWD-LV as it is in the nature of horizontal reservation. This post cannot be fitted up on the basis of merit of other category candidates. 7. Per contra the learned Counsel appearing on behalf of the Transmission Company has submitted that only two candidates under Unreserved PWD-LV has qualified i.e. the appellant and Reja and on the basis of the marks obtained Reja was given the appointment. It is submitted that in terms of 100 point roster the said vacancy is treated as unreserved vacancy and any candidate belongs to any other category namely, General, OBC-A, OBC-B, SC and ST can be considered on the basis of their position in the merit list. However, the said candidate has to be a PWD-LV candidate. It is submitted that in terms of 100 point roster the said vacancy is treated as unreserved vacancy and any candidate belongs to any other category namely, General, OBC-A, OBC-B, SC and ST can be considered on the basis of their position in the merit list. However, the said candidate has to be a PWD-LV candidate. The learned Counsel has referred to the notification of the Labour Department Circular No.50-EMP/IM-25/98 dated 1st March, 2011 to show that provision has been made for filling up of the post in the unreserved vacancy from other categories provided the required criteria is fulfilled. 8. It is submitted that provision has been made in the 100 point roster for vacancies for persons with disability and under the said roster one unreserved post has been kept for persons with disabilities – blindness and low vision. The learned Counsel has also referred to Section 5(b) of the West Bengal Backward Classes (Other Than Schedule Castes and Schedule Tribes) (Reservation of Vacancies in Services and Posts) Act, 2012 to show that the member of other backward classes qualifying on merit in an open competition on the same standard as of the unreserved candidates for appointment to any unreserved post in a service or post in an establishment to be filled up by direct recruitment shall not be adjusted against the quota reserved in such service or post for such candidate under sub Section (a). 9. For convenience Section 5 is reproduced below: “5. 9. For convenience Section 5 is reproduced below: “5. After the commencement of this Act, all appointments to services and posts in establishments which are to be filled up by direct recruitment shall be regulated in the following manner, namely,- (a) subject to the other provisions of this Act, ten per cent of the vacancies shall be reserved for candidates belonging to the Other Backward Classes denoted as "Other Backward Classes Category A" category and seven per cent of the vacancies shall be reserved for candidates belonging to the "Other Backward Classes Category B" category of the Other Backward Classes in the manner set out in Schedule III: Provided that the State Government may, from time to time, by notification in the Official Gazette, increase the percentage in the manner that the overall reservation for the Scheduled Castes, the Scheduled Tribes and Other Backward Classes shall not exceed fifty per cent; (b) the members of the Other Backward Classes qualifying on merit in an open competition on the same standard as of the unreserved candidates for appointment to any unreserved post in a service or post in an establishment to be filled up by direct recruitment shall not be adjusted against the quota reserved in such service or post for such candidate under sub Section (a). Explanation – For the purpose of this Act, other Backward Classes Category – A shall mena the “More Backward Classes” and the Other Backward Classes Category B hall mean the “Backward Classes”. 10. The Transmission Company justified his appointment on the basis of the migration from OBC-A to unreserved (PWD-LV) as he is also a PWD-LV and is required to be considered for the said post as both the appellant and the private respondent are PWD-LV and are eligible to be considered for the said post. 11. Learned Counsel for the private respondent has submitted that he is eligible having requisite qualification and having regard to the fact that he has also disclosed his disability in the application and the fact that he has secured more marks than the appellant, the Transmission Company has appointed him for the said post. 12. Considering the rival submission we find that the post to which the appellant and the private respondent were being considered is an unreserved post for persons with disabilities having low vision. Reja has applied under OBC-A category. 12. Considering the rival submission we find that the post to which the appellant and the private respondent were being considered is an unreserved post for persons with disabilities having low vision. Reja has applied under OBC-A category. He has disclosed that he is a person with disability having low vision. However, Reja could not secure a place in the said category but he had secured marks which is more than the appellant. The appellant has applied under Unreserved PWD-LV category. 13. In Indra Sawhney (supra) in the paragraph 811 he stated: “811. In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.” 14. It is thus clear that a person under a reserved category if he has scored marks higher than the candidates in the unreserved category in the open competition, he would be treated as open competition candidate and should be suitably placed depending upon the marks he secured in the open competition. The learned Counsel for the respondent has relied upon the paragraph 812 in which he stated: “812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under Clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. Horizontal reservations cut across the vertical reservations that is called inter-locking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains -and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.” 15. In the instant case, one vacancy is reserved in favour of PWD LV. The question arises whether Reja who is OBC-A category with disability could be considered for the unreserved PWD-LV category on the basis of the marks he obtained in the open competition as an OBC-A category candidate. Whether Reja would be considered in the Unreserved PWD-LV category although his application is to be considered under OBCA category or should it be restricted only in respect of the persons who have applied in the unreserved category with disability is the issue. The 100 point roster categorised this post as unreserved with physical disability-blindness and low vision. This can be found in the notification of the Labour Department dated 8th July, 2019 alluded to above. 16. In our view the unreserved PWD-LV category has to be treated as horizontal reservation. Reja was considered for selection under the OBC-A category. He cannot be considered under the unreserved PWD-LV category and in the event he fails to qualify on merit in the OBC-A category his case is required to be considered under the unreserved category on the basis of merits. Admittedly, the Reja was unsuccessful in OBC-A category and also under the unreserved category. The application of Reja has to be considered under the OBC-A category. There is no post for OBC-A PWD-LV. 17. In view of the fact that the appellant is entitled to horizontal reservation as an unreserved PWD-LV candidate, he should be given preference to Reja in the said category in terms of the decision in Indra Sawhney (supra). 18. The application of Reja has to be considered under the OBC-A category. There is no post for OBC-A PWD-LV. 17. In view of the fact that the appellant is entitled to horizontal reservation as an unreserved PWD-LV candidate, he should be given preference to Reja in the said category in terms of the decision in Indra Sawhney (supra). 18. Under such circumstances the appeal succeeds. 19. The order of the learned Single Judge is set aside. 20. The appellant shall be given to the appointment as he was successful in the examination within four weeks from date. 21. The appeal and the applications are disposed of. However, there shall be no order as to costs. Uday Kumar, J.- I agree