“61. The open category is not a “quota”, but rather available to all women and men alike. Similarly, as held in Rajesh Kumar Daria6, there is no quota for men. If we are to accept the second view [as held by the Allahabad High Court in Ajay Kumar v. State of U.P. and the Madhya Pradesh High Court in State of M.P. v. Uday Sisode, referred to in paras 24 and 25 of Lalit, J.’s judgment], the result would be confining the number of women candidates, irrespective of their performance, in their social reservation categories and therefore, destructive of logic and merit. The second view, therefore — perhaps unconsciously supports—but definitely results in confining the number of women in the select list to the overall numerical quota assured by the rule. 62. In my opinion, the second view collapses completely, when more than the stipulated percentage 20% (say, 40% or 50%) of women candidates figure in the most meritorious category. The said second view in Ajay Kumar and Uday Sisode thus penalises merit. The principle of mobility or migration, upheld by this Court in Union of India v. Ramesh Ram and other cases, would then have discriminatory application, as it would apply for mobility of special category men, but would not apply to the case of women in such special categories (as glaringly evident from the facts of this case) to women who score equal to or more than their counterparts in the open/general category.” 16. This Court thus considered two views, one which was taken by the High Courts of Rajasthan, Bombay, Gujarat and Uttarakhand; and, the second, which had weighed with the High Courts of Allahabad and Madhya Pradesh. After considering the totality of the circumstances as well as the rival submissions, the view taken by the High Courts of Rajasthan, Bombay, Gujarat and Uttarakhand was accepted to be the correct view and the one which was taken by the High Courts of Allahabad and Madhya Pradesh was not approved.
