REPORTABL
E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4360 OF 2010
STATE OF U.P. & ORS. APPELLANT(S)
VERSUS
SANGAM NATH PANDEY & ORS. RESPONDENT(S)
WITH
CIVIL APPEAL NO. 4381 OF 2010
U.P. PUBLIC SERVICE COMMISSION APPELLANT(S)
VERSUS
MANOJ KUMAR SINGH & ORS. RESPONDENT(S)
JUDGMENT
SURINDER SINGH NIJJAR, J.
1. This appeal has been filed by the State of Uttar
Pradesh challenging the order passed by the High Court
of Judicature at Allahabad, in Special Appeal No.1202 of
1
2006 whereby the Division Bench of the High Court
observed that the action of the State in treating
367 vacancies belonging to the reserved category as
backlog vacancies was legally not justified and further
issued a direction to the State Government to declare the
result afresh in respect of these vacancies as if they are
not backlog vacancies and that appointments may be
offered in terms of the roster provided under notification
dated 25th May, 2002 issued in exercise of powers under
Section 3 (5) of the U.P Act No. 4 of 1994.
2. In order to appreciate the factual and legal
controversies raised in this matter, it would be necessary
to notice the various legislative provisions which govern
the field of reservation in Public Services, in the State of
Uttar Pradesh. Initially, the reservation in public services
in the State of Uttar Pradesh was regulated through
various Government orders, issued from time to time.
The Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward
Classes) Act, 1994 (U.P. Act No. 4 of 1994) (hereinafter
2
referred to as “1994 Act”) was enacted by the State of
Uttar Pradesh following the judgment of this Court in
Indra Sawhney Vs. Union of India1. The aforesaid act
repealed the Uttar Pradesh Public Services (Regulation
for Backward Classes) Act, 1989 and the Uttar Pradesh
Public Services (Reservation for Scheduled Castes and
Scheduled Tribes) Act, 1993 and the Uttar Pradesh
Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and the other Backward Classes)
Ordinance, 1994.
3. The 1994 Act itself was amended by the Uttar
Pradesh Public Service (Reservation for Scheduled
Castes, Scheduled Tribes and Other Backwards Classes)
(Amendment) Act, 2001(U.P. Act No. 21 of 2001). Some
provisions of this Act were challenged in this Court in a
writ petition. This Court, by Interim Order
dated 21st January, 2002 directed that no executive
order, in pursuance of the aforesaid Act of 2001, shall be
passed during the pendency of the writ petition. Since a
1
(1992) Supp 3 SCC 217
3
large number of vacancies in public service is lying
vacant, the State of Uttar Pradesh decided to restore the
original position as obtained under the 1994 Act, i.e.
before the amendment by the U.P. Act No. 21 of 2001.
Thereafter, the Governor of Uttar Pradesh on 6th June,
2002 promulgated the Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and
Other Backwards Classes) (Amendment) Ordinance 2002.
This was subsequently replaced by the Uttar Pradesh
Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backwards Classes)
(Amendment) Act, 2002 (U.P. Act No. 1 of 2002).
4. Under the 1994 Act, very comprehensive provisions
have been made to provide for reservation in Public
Services and Posts in favour of the person belonging to
Scheduled Castes, Scheduled Tribes and Other Backward
Classes of citizens and for matters connected therewith
or incidental thereto. Section 3 of the aforesaid Act
provides certain percentages of vacancies reserved for
4
different categories of backward classes of citizens. The
following percentages were prescribed:-
Scheduled Castes 21% Scheduled Tribes 2% Other Backward Classes 27%
These vacancies were to be filled in accordance with the
roster provided under sub-section 5 of Section 3. The
aforesaid percentages remained the same even under the
amended Section 3 as contained in the Amendment Act,
2002. In accordance with the aforesaid formula, a
requisition was made by the Irrigation Department
Government of Uttar Pradesh on 20th October, 1999 to
the Uttar Pradesh Public Service Commission, for
initiating the process of selection of candidates for the
posts of Junior Engineer (Civil). Pursuant to this request,
an advertisement was issued on 22nd December, 2000 for
filling up 945 such posts. The last date for making the
applications was 27th January, 2001. The break up of the
said posts sought to be filled up was as follows:
477 general category
5
257 backward classes
200 Schedule Caste category
The written examinations were conducted on 22nd/23rd
December, 2001. The aforesaid examination was
conducted without taking into consideration the
reorganization of the State of Uttar Pradesh and the
creation of the State of Uttaranchal on 9th November,
2000. There was a 2 per cent reduction in vacancies
upon creation of the aforesaid new State. There was also
an increase in the number of available vacancies by
inclusion of the recruitment year 2003-2004. Thus, the
total number of posts against which the selection was to
be conducted was reduced from 954 to 887. The break
up was as follows:-
General Category 260
Backward Classes 391
Scheduled Castes 223
Scheduled Tribes 13
Consequently, by letter dated 6th November, 2003, the
State Government informed the Public Service
6
Commission to take further action for selection of 887
posts for the year 2003-2004 as opposed to the earlier
requisition for 954 posts. Acting upon the aforesaid
requisition, the result of the written examination was
declared on 6th October, 2005.
Thereafter by a letter dated 13th October, 2005, the
Government informed the Public Services Commission
that at the time of sending of the original requisition, the
posts of reserved category have been incorrectly got
included in the general selection process. Therefore, the
requisition be amended. In this requisition, the following
description of the general selection posts was given and a
request was made to initiate the process of selection:-
General Category 260
Scheduled Castes 109
Scheduled Tribes 10
Backward Classes 141
Thereafter, the Government addressed another letter
dated 25th October, 2005 to the Public Service
7
Commission with a request to initiate the process of
selection of the vacant posts meant exclusively for the
reserved categories of Scheduled Castes, Scheduled
Tribes and Backward Classes. It was stated that there
are a total number of 367 posts in the aforesaid reserved
categories for which, it was necessary to initiate the
process of selection as a special recruitment. The break
up of the posts category wise was:-
Scheduled Castes 114
Scheduled Tribes 3
Backward Classes 250
5. The Public Service Commission, thereafter,
initiated the selection process by incorporating the
various changes noticed above. Consequently, an option
was given to the reserved category candidates as to their
choice for being considered against the 520 posts of
general recruitment or against 367 posts of special
recruitment meant exclusively for the reserved category.
The reserved category candidates appear to have given
their option for the Special recruitment category of 367
8
posts. The interview was held thereafter between
21st November, 2005 to 12th January, 2006 for 520 posts
for general recruitment and 367 posts for special
recruitment. The final results were declared
on 12th March, 2006. It is not disputed that respondent
No. 1 to 3 and 5 had qualified in the written examination
and had appeared in the interview. It is also not
disputed that all these respondents remained
unsuccessful in the final selection.
6. Aggrieved by the exclusion of 367 posts for the
special recruitment, eight unsuccessful candidates
belonging to the General category filed four writ petitions
in the High Court of Judicature at Allahabad. It was the
claim of the writ petitioners that the advertisement
dated 20th/22nd December, 2000 was to fill the 954 posts,
which was subsequently modified to 887. 50 per cent of
the posts were reserved for different categories of
Scheduled Castes, Scheduled Tribes and Other Backward
Classes. The petitioners had no grievance about the
reduction of vacancies as indicated above. They also do
9
not have any grievance about the 50 per cent of the posts
reserved for the different categories. The only grievance
made by the writ petitioners is the exclusion
of 367 vacancies on the basis that they are backlog
vacancies which have remained unfilled and are to be
filled up by way of a special recruitment. According to
them, by exclusion of 367 vacancies, the total vacancies
for the general recruitment have been reduced to 520.
This has unnecessarily resulted in a reduction of the
posts which could be filled by all the categories in the
general recruitment. The petitioners claimed that the
exclusion of 367 vacancies from the general recruitment
was without any legal sanction. It was the case of the
petitioners that a vacancy can only be declared as a
backlog vacancy provided there was a complete selection
procedure in any recruitment year and the vacancy
remained unfilled. Since there had been no efforts earlier
to fill in all the 367 posts and declared as backlog, the
exclusion of the same from the general recruitment was
illegal.
10
7. The learned single Judge upon consideration of the
various facts concluded that the general strength of the
cadre being 4217 posts, 50 per cent of the general
category would be 2066 posts. Out of these 2066 posts,
1808 posts were already occupied and only 260 posts
were available for the non-reserved category. The learned
single Judge further observed that in view of the number
of posts occupied by the general category, it cannot be
said that there has been any choking of the general
category as indicated in the case of Indra Sawhney
(supra). By reducing the number of posts for the general
category, the objective of reservation policy is being
achieved. The learned single Judge relied on the letter
dated 4th July, 2006 to conclude that the State had
endeavored to achieve the object of reservation without
prejudicing the claim of the general category candidates.
The learned single Judge also observed that
“a perusal of section 3 of the act indicates that it
is not necessary for any vacancy having been
advertised on an earlier occasion in order to carry
out the special recruitment. The special
recruitment has to be made with the sole objective
of achieving the target of unfilled vacancies of the
reserve category after applying the roster. The
State Government, in the opinion of the Court, has
11
segregated the 367 posts as posts for special
recruitment in view of the fact that these posts
exclusively belong to the reserved category
remains undisputed. The petitioner, who belongs
to the general category, therefore, cannot have any
right or claim against the said posts, even if, they
have been advertised by the State Government.
The posts, which are meant to be filled up by the
reserved category, cannot be offered to the general
category candidates. In this view of the matter,
the State Government, has to apply the roster in
order to achieve the target. The questions as to
whether they are backlog vacancies or not need
not to be probed any further in view of the fact
that the applicability of the roster against the said
posts has to be determined. The aforesaid
discussions, therefore, leave to only one
conclusion that the State Government has not
over stepped the 50 per cent reservation quota but
the selections have to be finalized after applying
the roster.”
8. The learned single Judge concluded that the 50 per
cent limit as provided in the second proviso has not been
transgressed by the State in offering the 367 vacancies
for special recruitment as backlog vacancies. It is,
however, observed that the State Government ought to
undertake the exercise of carrying out the calculation of
the exact number of vacancies on the basis of the roster
provided under Section 3, sub-section 5 of the 1994 Act.
The writ petitions were disposed of with the aforesaid
observations.
12
9. Aggrieved against the aforesaid, the writ petitioners
preferred Special Appeal No. 1202 of 2006 before the
Division Bench. The Division Bench recorded the
following conclusions:-
“In view of the aforesaid we clarify that the backlog
vacancies with reference to Clause 2 of Section 3
of U.P. Act No. 4 of 1994 as amended by U.P. Act
No. 1 of 2002 necessarily mean those vacancies
within the reserved category which were subject
matter of an earlier advertisement but remained
unfilled because of non availability of suitable
candidates within the reserved category after
selection. It is only in respect of such vacancies
that the procedure qua backlog vacancies can be
adopted. We may further clarify that any vacancy
in the reserved category (however old it may be), if
it had not been advertised earlier and was not a
part of an earlier process of selection which was
completed, the same cannot be termed to be a
backlog vacancy.
In the facts and circumstances of the present case
it is not in dispute that the total number of
vacancies which were advertised earlier i.e. 954
but subsequently reduced to 887 were not covered
by any earlier advertisement nor were part of any
process of selection and, therefore, none of the
vacancies which were subject matter of the
advertisement in question (belonging to the
reserved category) can be termed to be backlog
vacancy. Therefore, the action of the State
respondents treating 367 vacancies belonging to
the reserved category as backlog vacancies is
legally not justified. Respondents are directed to
declare the result afresh in respect of these
vacancies as if they are not backlog vacancies and
appointments may be offered in terms of the roster
provided for under notification dated 25th May,
13
2002 issued in exercise of powers under Section
3(1) read with Section 3(5) of the U.P. Act No. 4 of
1994. The aforesaid exercise may be completed by
the State respondents within two months from the
date a certified copy of this order is filed before the
authority concerned.”
10.We have heard the counsel for the parties.
11.Mr. Dwivedi appearing for the State of U.P. submits
that the directions issued by the Division Bench
would only unsettle the settled position. He submits
that 703 posts have been filled up against 887
posts that were advertised. Further 183 posts would
be filled in compliance with the interim order of the
Division Bench. All the selected candidates have
joined and have completed almost three years of
service. The implementation of the directions of the
High Court would create legal as well as
administrative complication. He further submits that
367 posts which were segregated for special
recruitment do not, in any manner, infringe the rights
of the general category candidates. According to him,
a conjoint reading of the second proviso to sub-
14
section (1) of Section 3 and sub-sections (2) and (5) of
the said Section makes it abundantly clear that so
long as the reservation does not exceed 50 per cent of
the cadre strength, the general category candidates
can have no objection in the special recruitment
undertaken in order to complete the 100 points roster.
According to the learned counsel, the Division Bench
has misconstrued Section 3 in concluding that the
action of the State Government in treating 367
vacancies as backlog was legally not justified.
12. Making a reference to the letter dated 4th July, 2006,
it was submitted by Mr. Dwivedi that the State has
endeavoured to achieve the object of the reservation
without prejudicing the claim of the general category
candidates. He pointed out that out of the total
sanctioned strength of the cadre of 4127 posts, 50 per
cent for general category would be 2066 posts. Out of
that share, the general category already occupied
1808 posts leaving a balance of 260 posts which were
available to be filled up for general category. Under
15
the earlier advertisement dated 22nd of December,
2000, the break up of the vacancies was as under :
(i) No. of vacancies 954
(ii) Posts for Scheduled Castes 200
(iii) Posts for Scheduled Tribes 20
(iv) Posts for O.B.C. 257
(v) General Category 477
This would have been in excess of 50 per cent which is
impermissible under the law settled by this Court in the
case of Indra Sawhney (supra), and R.K. Sabharwal &
Ors Vs. State of Punjab & Ors.2. According to him, it
would also be contrary to the provisions contained under
Section 3 of the Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act 1994 as amended by Act
No. 1 of 2002. The total number of vacancies were
reduced to 887 out of which 520 earmarked for general
recruitment to ensure that the general category gets
260 vacancies i.e. 50 per cent of the total available
2
(1995) 2 SCC 745
16
vacancies in the cadre. Remaining 367 vacancies were
treated as backlog vacancies for the reserved categories.
Merely because the vacancies were not advertised would
not render the action of the State Government illegal.
Mr. Dwivedi also submits that all the appellants having
participated in the selection process cannot be permitted
to challenge the same merely because they have
remained unsuccessful. This apart, no relief could have
been given to the appellants as the selected candidates
have not been made parties.
13. On the other hand, Mr. Francis appearing for the
respondents submits that by excluding 367 vacancies
and earmarking the same for special recruitment, the
State of U.P. has infringed the 50 per cent rule in the
year of recruitment as well as in the cadre. Laying
considerable stress on the second proviso to Section 3
of the Amendment Act, 2002, he has submitted that
the total reservation for all categories of persons
cannot exceed in any year of recruitment 50 per cent
of the total vacancies of that year as also 50 per cent
17
of the cadre strength of the service to which the
recruitment is to be made. On the basis of the
calculation made by the State and by excluding 367
posts as backlog, the State has reduced the strength
of the percentage meant for the general recruitment
category. The recruitment of the reserved category has
gone up to 71 per cent as against 50 per cent.
According to the learned counsel, the interpretation
placed on the statutory provisions by the Division
Bench is in accordance with the law declared by this
Court in Indra Sawhney and R.K. Sabharwal’s case
(supra). It is also in accordance with the law settled
by this Court in the case of M. Nagaraja Vs. Union of
India3 and Ramesh Kumar Vs. High Court of
Delhi4. According to the learned counsel, the Division
Bench merely directed the State Government to follow
the mandate of the statue as well as the law declared
by this Court by directing the State to declare the
result afresh in respect of 367 vacancies by not
treating them as backlog vacancies and thereafter to
3
(2006) 8 SCC 212
4
(2010) 3 SCC 104
18
offer appointments in terms of the roster provided
under notification dated 25th May, 2002.
14.We have considered the submissions made by the
learned counsel for the parties. The entire controversy
in this case centres around the decision of the
State Government to treat the unfilled vacancies
undoubtedly falling to the share of the reserved
categories as backlog vacancies. In order to determine
as to what would be the backlog vacancies, it is
necessary to have a look at the relevant provisions of
the Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act 1994 as amended by the Act
No. 1 of 2002.
“2 (d) “year of recruitment” in relation to a vacancy
means a period of twelve months commencing on
the first of July of a year within which the process
of direct recruitment against which such vacancy
is initiated.
Amendment of Section 3 – In Section 3 of the
Principal Act, –
(a) for sub-sections (1), (2) and (3) the following
sub-section shall be substituted, namely :-
19
(1) In public services and posts, there shall be
reserved at the stage of direct recruitment,
the following percentage of vacancies to
which recruitments are to be made in
accordance with the roster referred to in
sub-section (5) in favour of the persons
belonging to Scheduled Castes, Scheduled
Tribes and Other Backward Classes of
citizens –
(a) in the case of Scheduled Castes Twenty one percent
(b) in the case of Scheduled Tribes Two percent
(c) in the case of Other Backward Twenty seven percent
Classes of citizens
Provided that the reservation under clause ) shall
not apply to the category of Other Backward
Classes of citizens specified in Schedule II :
Provided further that reservation of vacancies for
all categories of persons shall not exceed in any
year of recruitment fifty percent of the total
vacancies of that year as also fifty percent of the
cadre strength of the services to which the
recruitment is to be made.
(2) If, in respect of any year of recruitment any
vacancy reserved for any category of persons
under sub-section (1) remains unfilled, such
vacancy shall be carried forward and be
filled through special recruitments in that
very year or in succeeding year or years of
recruitment as a separate class of vacancy
and such class of vacancy shall not be
considered together with the vacancies of the
year of recruitment in which it is filled and
also for the purpose of determining the
ceiling of fifty percent reservation of the total
vacancies of that year notwithstanding
anything to the contrary contained in sub-
section (1) ;
(3) Where a vacancy reserved for the Scheduled
Tribes remains unfilled even after three
20
special recruitments made under sub-
section (2), such vacancy may be filled from
amongst the persons belonging to the
Scheduled Castes.”
(b) (i) Sub-sections (3-A),(3-B) shall be
omitted;
(ii) Sub-section (4) shall be omitted;
(c) for sub-section (5), the following sub-
section shall be substituted, namely :-
“(5) The State Government shall for applying
the reservation under sub-section (1), by a
notified order, issue a roster comprising the
total cadre strength of the public service or
post indicating therein the reserve points
and the roster so issued shall be
implemented in the form of a running
account from year to year until the
reservation for various categories of persons
mentioned in sub-section (1) is achieved and
the operation of the roster and the running
account shall, thereafter, come to an end,
and when a vacancy arises thereafter in
public service or post the same shall be filled
from amongst the persons belonging to the
category to which the post belongs in the
roster.”
15. A bare perusal of the above would show that the Act
regulates the extent of reservation in Public Services and
Posts in favour of the persons belonging to Scheduled
Castes, Scheduled Tribes and Other Backward Classes of
citizens and for matters connected therewith or
incidental thereto. It also provides for a self-contained
mechanism as to how the posts shall be distributed
21
among the different categories according to 100 point
roster. The second proviso to Section 3, which is relevant
to matter in issue herein, stipulates that reservation of
vacancies for all categories of persons shall not exceed in
any year of recruitment, 50 per cent of the total
vacancies of that year as also 50 per cent of the cadres
strength of the service to which the recruitment is to be
made. The proviso clearly postulates a two-fold
restriction on the extent to which vacancies can be
reserved in a year of recruitment as also the cadre
strength of the service. It is clearly provided that in any
year of recruitment reservations of vacancies for all
categories of persons shall not exceed 50 per cent of the
total vacancies of the year of recruitment in which such
recruitment takes place. Under the second part of the
proviso, reservation can also not exceed 50 per cent of
the cadre strength of the service to which recruitment is
to be made.
16. In any recruitment year, it may happen that the
candidates belonging to the reserved category may not be
22
available to fill the vacancies falling to the share of the
particular reserved category. In such circumstances, sub-
section (2) of Section 3 enables the State to carry forward
the unfilled vacancy/vacancies to be filled through
special recruitment as a separate class of vacancy. Such
class of vacancy can not be intermingled with the
vacancies of the year of recruitment in which it is filled.
It also can not be counted for the purpose of determining
of ceiling of 50 per cent reservation of the total vacancies
of that year. The provision contained in sub-section 2 is,
notwithstanding anything to the contrary contained in
sub-section 1, which provide for a total 50 per cent
reservation for the categories of Scheduled Castes,
Scheduled Tribes and Other Backward Classes, i.e.,
21 per cent, 2 per cent and 27 per cent respectively. The
terminology of the aforesaid section is clear and
unambiguous. Therefore, construed in its ordinary, literal
sense, the sub section provides that the carried forward
vacancies are not to be included in calculating the 50 per
cent cap as contained in Proviso 2 to Section 3 (1). The
special recruitment may be held in that very year or in
23
the succeeding year or years of recruitment as a separate
class of vacancy. Sub-section 3 further provides that if
vacancy/vacancies reserved for Scheduled Tribes
remained unfilled even after three special recruitment
made under sub-section 2, such vacancies are to be filled
up from amongst persons belonging to the Scheduled
Castes. In other words, unfilled vacancies falling to the
share of Backward Classes and Scheduled Castes and
Scheduled Tribes, can be offered to the Scheduled Castes
category. These provisions clearly indicate that the posts
which are meant for the reserved categories would be
offered only to the reserved categories so long as the
reserved roster points are not occupied by the reserved
categories.
17. The aforesaid conclusion also flows naturally from
sub-section 5 of Section 3. The plain language of
aforesaid sub-section clearly shows that reservation
under sub-section 1 of Section 3 shall be achieved by
application of a roster indicating therein; the total cadre
strength of the Public Service or Posts and the reserved
24
points in the roster. The roster so issued is required to
be implemented in the form of a running account from
year to year until the reservation for various categories of
persons mentioned in sub-section 1 is achieved. The
vacancies arising thereafter in the Public Service or Posts
to be filled from among the persons belonging to the
category to which the posts belong in the roster.
18. Keeping in view the aforesaid legal position, the
issuance of the letter dated 4th July, 2006 would be
wholly justified. A perusal of the same would clearly
demonstrate the anxiety of the Government, though
belated, to ensure that the action is taken in accordance
with the reservation policy and the roster which is to be
maintained in terms of sub-section 5 of Section 3. The
aforesaid letter reads as follows:-
“No.G-223-E-2-Kal/Court Case
From:
Engineer-in-Chief,
Establishment – 2 Ka- Section,
Irrigation Department, U.P.
Lucknow.
To:
25
Chief Standing Counsel,
High Court, Allahabad.
Dated Lucknow : July 4, 2006.
Subject: Regarding Civil Misc. Writ Petition
No.16005/2006 titled Sangam Nath
Pandey and others vs. State of Uttar
Pradesh and others.
Sir,
Kindly have a look into the letter No.Memo/P.S./2006
dated 3.7.2006, vide which you have sought information
regarding the status of the total cadre (group) of Civil Junior
Engineers and regarding their reservation on the above
subject.
2. On this subject, I have to say that in the Irrigation
Department there are total 4217 posts of Junior Engineers
(Civil) for direct recruitment and at the time when the
amendment was made to Adhiyachan of 887 posts, at that
time the position of the quota of reserved category was as
under:
Quota Quota Quota Quota
General S.C. S.T. O.B.C.
Total sanctioned
Posts 4218
Working after 2066 868 83 1116
Deduction of 2%
From sanctioned
Posts.
Working 2672 1808 200 1 663
Group-wise
Shortage 1461 258 668 82 453
Posts to fall 2 2 -- -- --
Vacant in year
2003-2004
26
Requisitions
forwarded 1463 260 668 82 453
Thereafter, for completing the reserved quota of the
reserved category the following requisitions have been sent.
Selection in dispute 887
Special Selection 352 SC/ST)
(292 SC + 60 ST)
Special Selection 9 SC
Special Selection 153 SC
Special Selection 62 SC
----------------------
Total 1463
----------------------
It is clear from that the Department has with object
to complete quote on sanctioned posts has forwarded
requisitions as above and has requested for the action
accordingly.
Yours faithfully,
Sd/-
(Gaya Prasad)
Senior Staff Officer (E-2Ka)
For Engineer in Chief, Irrigation Department”
19. A harmonious construction of sections 2(d), 3(2)
and 3(5) would lead to the conclusion, as stated by the
Division Bench, that only those vacancies can be
declared backlog vacancies, within the reserved category,
which were subject matter of advertisement but remained
unfilled because of non-availability of suitable
27
candidates, within the reserved category, after selection.
It is only in respect of such vacancy that the procedure
qua backlog vacancy can be adopted. Any vacancy,
which has not been subjected to a complete process of
selection, even though vacant, cannot be treated as a
backlog vacancy.
20. Section 2(d) defines a period of 12 months
commencing on 1st of July of a year as a year of
recruitment for calculation of the number of vacancies.
Section 3(1) gives the different percentages of vacancies,
which are reserved for different categories of backward
class candidates. The percentage of vacancies reserved
under Section 3(1) had to be filled according to the roster
mechanism provided under sub-section 5 of Section 3.
Section 2(d) would tend to indicate that the State was
required to determine the number of available vacancies
in every year of recruitment. Once the vacancies are
determined, necessary requisition would have to be sent
to the Public Service Commission for initiating the
process of selection. We have noticed earlier the
28
correspondence of the Government with the Public
Service Commission intimating the number of posts to be
filled at various stages.
21. In spite of the aforesaid requests, it appears that the
posts meant for the reserved categories could not be
filled. The State Government had only partly performed
its duties by sending the necessary requisitions to the
Public Service Commission for initiating the selection
process. Thereafter, the selection process ought to have
been completed as provided under the Statutory Rules.
It appears that the selection process for the 367 posts
was not completed. Therefore, the aforesaid vacancies
could not be termed as unfilled vacancies belonging to
the reserved categories. But, at the same time, it also
can not be disputed by anybody that the 367 posts,
which are sought to be filled by special recruitment are
posts, which are meant for the reserved categories and
have remained unfilled. This is evident from the letter
dated 25th October, 2005 pointing out that out of the 887
posts mentioned in the letter dated 13th October, 2005,
29
367 posts were infact reserved category posts, which had
been lying vacant and had been wrongly included in the
general recruitment. Hence, a request was made to
exclude the aforesaid posts from the general selection
and be filled by holding a special recruitment for the
reserved category candidates.
22. The exercise of identifying the year-wise and cadre-
wise vacancies ought to have been conducted by the
State prior to the issuance of the advertisement as rightly
noticed by the learned single Judge. The purpose of
introducing a roster system was to ensure that the
percentages of reservation provided for various categories
of persons is effectively and speedily achieved. This can
only be done if the department concerned identifies the
year-wise vacancies in the cadre. Once the vacancies are
identified, it is enjoined upon the authorities to ensure
that the selection procedure is completed speedily. This
is necessary to avoid uncertainty to all categories of
candidates. General category, as well as, the reserved
category candidates are likely to be adversely affected in
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case the vacancies are not filled within a reasonable
period of time. As a result of undue delay, certain
candidates will always be in the danger of becoming
overage to apply for some particular posts falling in a
particular year of recruitment. Unnecessary lethargy in
filling up the posts would also lead to further uncertainty
and chaos among the recruits with regard to their
seniority, confirmation and promotions. Such a situation
only gives rise to unavoidable litigation, lasting for many
long years. This case epitomizes such malaise.
23. In our opinion, the State Government, in the
present case, ought to have initiated the necessary
selection procedure upon due verification of the posts
available for the reserved categories. It was not sufficient
to merely send the requisition to the Public Service
Commission. It was necessary for the State to pursue
the matter with the Public Service Commission for
completion of the selection process. Otherwise, the very
purpose of introducing the roster system and a running
account would be totally defeated. We may reiterate here
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the observations made by this Court in the case
of R.K. Sabharwal (supra). With regard to the operation
of the roster system, in the aforesaid case, it was
observed as follows:-
“5. We see considerable force in the second
contention raised by the learned counsel for the
petitioners. The reservations provided under the
impugned Government instructions are to be
operated in accordance with the roster to be
maintained in each Department. The roster is
implemented in the form of running account from
year to year. The purpose of “running account” is
to make sure that the Scheduled Castes/Schedule
Tribes and Backward Classes get their percentage
of reserved posts. The concept of “running
account” in the impugned instructions has to be
so interpreted that it does not result in excessive
reservation. “16% of the posts …” are reserved for
members of the Scheduled Castes and Backward
Classes. In a lot of 100 posts those falling at Serial
Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72,
80, 87 and 91 have been reserved and earmarked
in the roster for the Scheduled Castes. Roster
points 26 and 76 are reserved for the members of
Backward Classes. It is thus obvious that when
recruitment to a cadre starts then 14 posts
earmarked in the roster are to be filled from
amongst the members of the Scheduled Castes. To
illustrate, first post in a cadre must go to the
Scheduled Caste and thereafter the said class is
entitled to 7th, 15th, 22nd and onwards up to
91st post. When the total number of posts in a
cadre are filled by the operation of the roster then
the result envisaged by the impugned instructions
is achieved. In other words, in a cadre of 100
posts when the posts earmarked in the roster for
the Scheduled Castes and the Backward Classes
are filled the percentage of reservation provided for
the reserved categories is achieved. We see no
justification to operate the roster thereafter. The
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“running account” is to operate only till the quota
provided under the impugned instructions is
reached and not thereafter. Once the prescribed
percentage of posts is filled the numerical test of
adequacy is satisfied and thereafter the roster
does not survive. The percentage of reservation is
the desired representation of the Backward
Classes in the State Services and is consistent
with the demographic estimate based on the
proportion worked out in relation to their
population. The numerical quota of posts is not a
shifting boundary but represents a figure with due
application of mind. Therefore, the only way to
assure equality of opportunity to the Backward
Classes and the general category is to permit the
roster to operate till the time the respective
appointees/promotees occupy the posts meant for
them in the roster. The operation of the roster and
the “running account” must come to an end
thereafter. The vacancies arising in the cadre,
after the initial posts are filled, will pose no
difficulty. As and when there is a vacancy whether
permanent or temporary in a particular post the
same has to be filled from amongst the category to
which the post belonged in the roster. For example
the Scheduled Caste persons holding the posts at
roster points 1, 7, 15 retire then these slots are to
be filled from amongst the persons belonging to
the Scheduled Castes. Similarly, if the persons
holding the post at points 8 to 14 or 23 to 29
retire then these slots are to be filled from among
the general category. By following this procedure
there shall neither be shortfall nor excess in the
percentage of reservation.
6. The expressions `posts’ and `vacancies’, often
used in the executive instructions providing for
reservations, are rather problematical. The word
`post’ means an appointment, job, office or
employment. A position to which a person is
appointed. `Vacancy’ means an unoccupied post or
office. The plain meaning of the two expressions
make it clear that there must be a `post’ in
existence to enable the `vacancy’ to occur. The
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cadre-strength is always measured by the number
of posts comprising the cadre. Right to be
considered for appointment can only be claimed in
respect of a post in a cadre. As a consequence the
percentage of reservation has to be worked out in
relation to the number of posts which form the
cadre-strength. The concept of `vacancy’ has no
relevance in operating the percentage of
reservation.
7. When all the roster points in a cadre are filled
the required percentage of reservation is achieved.
Once the total cadre has full representation of the
Scheduled Castes/Tribes and Backward Classes
in accordance with the reservation policy then the
vacancies arising thereafter in the cadre are to be
filled from amongst the category of persons to
whom the respective vacancies belong. Jeevan
Reddy, J. speaking for the majority in Indra
Sawhney v. Union of India (1992 Supp (3) SCC
217) observed as under: (SCC p. 737, para 814)
“Take a unit/service/cadre comprising 1000
posts. The reservation in favour of Scheduled
Tribes, Scheduled Castes and Other Backward
Classes is 50% which means that out of the 1000
posts 500 must be held by the members of these
classes i.e. 270 by Other Backward Classes, 150
by Scheduled Castes and 80 by Scheduled Tribes.
At a given point of time, let us say, the number of
members of OBCs in the unit/service/category is
only 50, a shortfall of 220. Similarly the number of
members of Scheduled Castes and Scheduled
Tribes is only 20 and 5 respectively, shortfall of
130 and 75. If the entire service/cadre is taken as
a unit and the backlog is sought to be made up,
then the open competition channel has to be
choked altogether for a number of years until the
number of members of all Backward Classes
reaches 500, i.e., till the quota meant for each of
them is filled up. This may take quite a
number of years because the number of vacancies
arising each year are not many. Meanwhile, the
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members of open competition category would
become age-barred and ineligible. Equality of
opportunity in their case would become a mere
mirage. It must be remembered that the equality
of opportunity guaranteed by clause (1) is to each
individual citizen of the country while clause (4)
contemplates special provision being made in
favour of socially disadvantaged classes. Both
must be balanced against each other. Neither
should be allowed to eclipse the other. For the
above reason, we hold that for the purpose of
applying the rule of 50% a year should be taken as
the unit and not the entire strength of the cadre,
service or the unit as the case may be.”
The facts narrated above would indicate is that the
situation in the present case is almost as it was depicted
by this Court in the case of Indra Sawhney (supra).
We, therefore, reiterate that it is necessary for the
department to identify year-wise vacancies for the cadre.
It is also necessary to fill up the posts speedily in order to
avoid certain candidates being rendered ineligible as they
may have become overage. It is for this reason that
Section 3 has placed importance on the year of
recruitment as also on the process of selection. In our
opinion, the authorities have been rather casual in their
approach in implementing the reservation policy, in letter
and spirit. We are, however, conscious of the fact that
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the 367 posts lying vacant for a number of years are
meant only for the reserved categories. They have been
calculated on the basis of the percentages reserved for
various categories. In segregation of the aforesaid posts,
none of the unreserved categories would be deprived of
any posts which ought legitimately to have fallen to their
share.
24. Therefore, we are of the considered opinion that the
interest of justice, in the peculiar facts of this case,
demands that the course adopted by the State
Government in segregating 367 posts for special
recruitment ought not to be disturbed. For the aforesaid
reasons, we are unable to agree with the direction issued
by the Division Bench in the impugned Judgment.
25. Before we part, we may also notice that all the writ
petitioners have participated in the selection process and
remained unsuccessful. Therefore, none of their legal
rights has been infringed.
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26. In view of the above, the appeal is allowed. The
Judgment of the Division Bench is set aside.
Civil Appeal No. 4381 of 2010
In view of the judgment passed in Civil Appeal No.
4360 of 2010, this appeal is also allowed and the
Judgment of the Division Bench is set aside.
……………………………..J.
[B.Sudershan Reddy]
……………………………..J.
[Surinder Singh Nijjar]
New Delhi;
37
December 15, 2010.
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