IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.8932 of 2020

======================================================

1.DR. Amod Prabodhi Son of Devendra Prasad Singh Resident of Village-

Prabodhi Narendra , P.S.-Sarai, District-Vaishali.

2.Rajesh Kumar Choudhary Son of Late Ramprasad Choudhary Resident of

Village-Laheria Sarai P.S.-Laheria Sarai, District-Darbhanga.

3.Ashok Kumar Son of Sri Yaduvansh Roy Resident of Village-Kishopur, P.S.-

Vaishali, District-Vaishali.

4.Rajeev Joshi Son of Binod Kumar Yadav Resident of Village-Rariyaha, P.S.-

Ghailarh, District-Madhepura.

5.Anil Kumar Son of Ashok Kuamr Singh Resident of Parwaati Hata, Bhatta

Bazar, P.S.-K. Hat, District-Purnea.

6.Brahmdeo Kumar Son of Late Bindeshwari Yadav Resident of Village-

Mangerwara, P.S.-Srinagar, District-Madhepura.

7.Kawita Kumari D/o Anil Kuamr Singh Resident of Village-Basant Vihar,

Dighi Kala (W) P.S.-Hajipur Sadar, District-Vaishali.

8.Shailendra Kumar Son of Late Harinandan Sharma Resident of Village-

Kauriya, P.S.-Ghoshi, District-Jehanabad.

9.Dr. Om Prakash Son of Late Sarvendra Ray Resident of Village- Lawapur

Mahnar, P.S.-Mahnar, District-Vaishali.

... ... Petitioner/s

Versus

1.The State of Bihar through the Principal Secretary, Department of

Education, Government of Bihar, Patna.

2.The Principal Secretary, Department of Education, Government of Bihar,

Patna.

3.The Director, Higher Education, Education Department, Government of

Bihar, Patna.

4.The Bihar State University service Commission through its Secretary, 8th

Floor, BIhar School Examination Board, Academic Building, Budh Marg,

Patna-800001.

5.The secretary, Bihar State University Service Commission, 8th Floor, BIhar

School Examination Board, Academic Building, Budh Marg, Patna-800001.

6.The Chairman, Bihar State4 University service Commission, 8th Floor,

Bihar School Examination Board, Academic Building, Budh Marg, Patna-

800001.

7.The Vice Chancellor, Patna University, Patna.

8.The Vice Chancellor, jai Prakash University, Chapra.

9.The Vice Chancellor, Patliputra University, Patna.

10.The Vice Chamcellor, Punea University, Purnea.

11.The Vice Chancellor, B.R. Ambedkar,Bihar University, Muzaffarpur.

12.The Vice Chancellor, Bhupendra Narayan Mandal University, Madhepura.

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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13.The Vice Chancellor, Magadh University, Bodh Gaya.

14.The Vice Chancellor, Kameshwar Singh Sanskrit University, Darbhanga.

15.The Vice Chancellor, Munger University, Munger.

16.The Vice Chancellor, Lalit Narayan Mithila University, Darbhanga.

17.The Vice Chancellor, Veer Kunwar Singh University, Chapra.

18.The Vive Chancellor, Tilka Manjhi Bhagalpur University, Bhagalpur.

... ... Respondent/s

======================================================

with

Civil Writ Jurisdiction Case No. 8817 of 2020

======================================================

1.Digambar Jha S/o Shivnandan Jha R/o Malpur Sighara, Singhara Buzurg,

Vaishali, Bihar- 844126.

2.Binod Kumar Singh S/o Umesh Prasad Singh R/o Ward 3, Shekhpur,

Shekhpura, Muzaffarpur, Sheikhpura, Bihar- 842002.

3.Sk. Md. Hafijur S/o Late Sk. Md. Hasem R/o Village- Simulia, Kurkuba,

Galsi, Barddhaman, West Bengal- 713406.

4.Arti Shukla W/o Ravi Ranjan Shukla R/o Madnani Gali, Near City Life,

Musahri, Muzaffarpur, Bihar- 842002.

5.Umesh Kumar Ummuct S/o Harendra Prasad Kushwaha R/o Bandi,

Mohabbatpur, Muzaffarpur, Bihar- 843120.

... ... Petitioner/s

Versus

1.The State of Bihar through the Principal Secretary, Education Department.

2.The Principal Secretary, Education Department, Government of Bihar.

3.The Principal Secretary, Department of Personnel (KARMIK), Government

of Bihar.

4.The Director, Higher Education, Bihar, Patna.

5.The Bihar State University Service Commission through its Chairman.

6.The Chairman, Bihar State University Commission, Patna.

7.The Secretary, Bihar State University Commission, Patna.

8.The B.R.A., Bihar University through its Vice Chancellor.

9.The Vice Chancellor, B.R.A. Bihar University, Muzaffarpur.

10.The Registrar, B.R.A. Bihar University, Muzaffarpur.

11.The Divisional Commissioner, Tirhut, Muzaffarpur.

... ... Respondent/s

======================================================

with

Civil Writ Jurisdiction Case No. 433 of 2021

======================================================

1.Navin Shanakr Pathak Son of Jeetan Pathak, Resident of Niyajipur, P.S.-

Simari, Buxar-802131

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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2.Dhanjee Pathak Son of Deo Narayan Pathak Resident of Niyajipur, P.S.-

Simari, District-Buxar-802131

3.Vinod Kumar Son of Chandeshwar Mehta, Resident of Kawakol,

Dudhapania, District-Nawada-805106

4.Abhishek Kumar Singh Son of Ram Kumar Mukul, Resident of Brahm

Sthan, Mehandiganj, Patna City, District-Patna-800008

5.Arihant Nachiketa, Son of Ram Singh Resident of Baruna, P.O.-Ariaon,

District-Buxar-802119

6.Aman Kumar Son of Rajniti Prasad Yadav Resident of Awash Board, Ranko,

Khagaria, District-Khagaria-851205

7.Raghubansh Kumar Sinha Son of Kuldeep Singh Resident of saifganj, P.O.-

Bankey Bazar, District-Gaya-824217

8.Binod Kumar Son of Surya Narayan yadav Resident of Bela Singar,

Dighiya, Nirmali, District-Supaul-847452

9.Narendra kumar Son of Jagdish Prasad Resident of Kamasi, P.O.-

Sheikhpura, District-Sheikpura-811105

10.Swati Kumari Daughter of Shatrughan Singh Resident of Magadh Colony,

Gaya, District-Gaya-823001

... ... Petitioner/s

Versus

1.The State of Bihar through its Principal Secretary, Principal Secretary,

General Administrative Department, Government of Bihar, Patna.

2.The Principal Secretary, General Administrative Department, Government of

Bihar, Patna

3.The Principal Secretary, Education Department, Government of Bihar,

Patna.

4.The University Grants Commission, through its Secretary, New Delhi.

5.The Bihar State University Service Commission through its Secretary, Budh

Marg, Patna.

6.The Secretary, Bihar State University Service Commision, Budh Marg,

Patna.

7.The Patna University through its Registrar, Patna.

8.The Patliputra University through its Registrar, Patna.

9.The Magadh University through its Registrar, Bodh Gaya

10.The Lalit Narayan Mirhila University through its Registrar, Darbhanga.

11.The Bhupendra Narayan Mandal University through its Registrar,

Madhepura.

12.The Veer Kunwar Singh University through its Registrar, Ara.

13.The Tilka Manjhi Bhagalpur University through its Registrar, Bhagalpur.

14.The B R Ambedkar Bihar University through its Registrar, Muzaffarpur.

15.The Kamashwar Singh Darbhanga Sanskrit University through its Registrar,

Darbhanga.

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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16.The Munger University, through its Registrar, Munger.

17.The Purnia University through its Registrar, Purnia

18.The Jai Prakash University through its Registrar, Chapra.

... ... Respondent/s

======================================================

with

Civil Writ Jurisdiction Case No. 5853 of 2021

======================================================

Raj Laxmi Wife of Dr. Hariniwash Singh, Resident of Manik Sarkar Chowk,

P.S. - Jagdishpur, District - Bhagalpur.

... ... Petitioner/s

Versus

1.The State of Bihar through Principal Secretary, Education Department,

Government of Bihar, Patna.

2.The Principal Secretary, Education Department, Government of Bihar,

Patna.

3.The Bihar State University Service Commission through its Secretary, Patna.

4.The Secretary, Bihar State University Service Commission, Patna.

5.The Chairman, Bihar State University Service Commission, Patna.

... ... Respondent/s

======================================================

with

Civil Writ Jurisdiction Case No. 17074 of 2022

======================================================

Padam Bhushan Prasad Singh @ Padm Bhushan Prasad Singh son of Late

Yugal Kishore Prasad Singh @ Yugal Kishor, Resident of Village and P.O.-

Bhagwanpur Kamla, Ward No. 11, P.S.- Ujiarpur, District- Samastipur.

... ... Petitioner/s

Versus

1.The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.

2.The Secretary Education Department, Govt. of Bihar, New Secretariat, Vikas

Bhawan, Bailey Road, Patna-17.

3.The Chairman, Bihar State University Service Commission, 8th, Floor,

Bihar School Examination Board, Academic Building, Budh Marg, Patna- 1.

4.THe Chairman, Bihar Public Service Commission, 15th, Jawahar Lal Nehru

Marg, Bailey Road, Patna-1.

5.The Hon'ble Chancellor, University of Bihar, Governor's Secretariat, Raj

Bhawan, Patna-22.

... ... Respondent/s

======================================================

with

Civil Writ Jurisdiction Case No. 226 of 2023

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Rashmi Dutta Daughter of Jai Prakash Dutta, Resident of Chitragupta Nagar,

Kayasth Tola, Ward No. 29, Police Station-Saharsa, District-Saharsa.

... ... Petitioner/s

Versus

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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1.The Bihar State University Service Commission through its Chairman, 8th

Floor, Bihar School Examination Board, Academic Building, Buddha Marg,

Patna.

2.The Secretary, the Bihar State University Service Commission, through its

Chairman, 8th Floor, Bihar School Examination Board, Academic Building,

Buddha Marg, Patna.

3.The Principal Secretary, Education Department, Higher Education,

Government of Bihar, Patna.

4.The Director, Higher Education, Education Department, Government of

Bihar, Patna.

5.The Principal Secretary, General Administrative Department, Government of

Bihar, Patna.

... ... Respondent/s

======================================================

Appearance :

(In Civil Writ Jurisdiction Case No. 8932 of 2020)

For the Petitioner/s : Mr. P.K. Shahi, Sr. Adv.

Mr. Satyam Shivam Sundaram, Adv.

For the Magadh University: Mr. Rakesh Kr. Singh, Adv.

For the L.N.M.U. : Mr. Nadim Seraj, Adv.

Mr. Shahbaj Alam, Adv.

For the Respondent No. 9: Mr. Rana Vikram Singh, Adv.

Ms. Rasika, Adv.

For the Commission : Mr. Pawan Kr. Choudhary, Adv.

Mr. Manoj Kumar, Adv.

For the K.S.D.S. University: Mr. Deepak Kumar, Adv.

For the Purnea University: Mr. Rakesh Kr. Samrendra, Adv.

(In Civil Writ Jurisdiction Case No. 8817 of 2020)

For the Petitioner/s : Mr. P.K. Shahi, Sr. Adv.

Mr. Suman Kumar, Adv.

For the B.R.A.B.U. : Mr. Inderjeet Kumar, Adv.

For the State : Mr. S.C. Mishra, Adv. With

Mr. Suman Kumar, Adv.

Mr. Priyadarshi Matri Sharan, AC

to AAG13

For the U.S.C. : Mr. Pawan Kr. Choudhary, Adv.

(In Civil Writ Jurisdiction Case No. 433 of 2021)

For the Petitioner/s : Mr. Anjani Kumar Jha, Adv.

Mr. Arun Kr. Jha, Adv.

For the Respondent No. 15 : Mr. Shashi Nath Jha, Adv.

For the Respondent No. 7 &8 : Mr. Rana Vikram Singh, Adv.

Ms. Rasika, Adv.

For the Commission : Mr. Manoj Kumar, Adv.

For the Respondent No. 4 : Mr. Hare Bhaskar Geetesh, Adv.

For the BNMU, JPU, VKSU : Mr. Ritesh Kumar, Adv.

For the State : Mr. Deepak Kumar, AC to GP 4

For the L.N.M.U. : Mr. Nadim Seraj, Adv.

Mr. Shahbaj Alam, Adv.

For the Respondent No. 13 : Mr. Ranjan Kr. Sinha, Adv.

For the Respondent No. 7 : Mr. Ajay, Adv.

(In Civil Writ Jurisdiction Case No. 5853 of 2021)

For the Petitioner/s : Mr. Dineshwar Prasad Singh, Adv.

For the B.S.U.S.C. : Mr. Pawan Kumar Chaudhary, Adv.

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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Mr. Manoj Kumar, Adv.

For the State : Mr. Subhash Chandra Mishra, SC 16

(In Civil Writ Jurisdiction Case No. 17074 of 2022)

For the Petitioner/s : Mr. Ram Nibash Prasad, Adv.

For the State : Mr. Jai Prabhat Kishore, AC to SC 13

For the U.S.C. : Mr. Pawan Kumar Chaudhury, Adv.

For the B.P.S.C. : Mr. Sanjay Pandey, Adv.

Mr. Nishant Kumar Jha, Adv.

(In Civil Writ Jurisdiction Case No. 226 of 2023)

For the Petitioner/s : Mr. Uday Chand Prasad, Adv.

For the Respondent/s : Mr. Prabhakar Jha ( GP 27 )

Mr. Pawan Kr. Chaudhary, Adv.

======================================================

CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH

SHARMA

ORAL JUDGMENT

Date : 24-02-2023

1. These writ petitions involve a common

question of law and the facts are similar in all the cases.

However, certain claims have been made by the petitioners who

are from different categories. Having noticed the facts which

shall be mentioned at suitable place, the writ petitions are being

decided jointly. Arguments of respective counsels were heard

and the Additional Chief Secretary, Education Department also

appeared in person and made some submissions.

2. The entire gravamen of the arguments is a

challenge to the advertisement dated 21.09.2020 issued by the

Bihar State University Service Commission (hereinafter,

referred as Universities Commission). Applications were invited

for appointment of Assistant Professor in 13 Universities for 52

different subjects. The advertisement mentions breakup of

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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subject-wise posts category-wise available for appointment in

Table 1.

As per Table 1 :-

CATEGORY TOTAL POSTS POSTS

RESERVED FOR

WOMEN

Open Category 1223 407

E.W.S. 309 63

S.C. 1187 175

S.T. 141 1

E.B.C. 1227 197

B.C. 344 65

B.C. Women 207

Physically

Handicapped

103

Wards of Freedom

Fighters

26

3. Thus, out of the total 4638 posts of Assistant

Professors advertised, only 1223 posts have been made

available for General Category/ Open Category (hereinafter,

referred as O.C.).

4. Thus it is alleged that the bar of making

reservation more than 50% has been breached. It is also alleged

that sufficient percentage of reservation for E.W.S., Physically

Handicapped and Wards of Freedom Fighters has also not been

provided. The percentage reserved for B.C. Category has also

not been fulfilled.

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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5. The Bihar Reservation of Vacancies in Posts

and Service (For Scheduled Castes, Scheduled Tribes and

Other Backward Classes) Act, 1991 (hereinafter, referred as

Reservation Act of 1991), provides following percentage of

reservation after the reorganization of State of Bihar in 2002.

1. Scheduled Caste (S.C.) - 16%

2. Scheduled Tribe (S.T.) – 1%

3.Extremely Backward Class (E.B.C.) -18%

4.Backward Class (B.C.) - 12%

5. Women of Backward Classes (W.B.C.) - 3%

Total Percentage – 50%

That apart, in terms of the The Rights of Persons with

Disabilities (RPWD) Act of 2016 (hereinafter, referred as

Disabilities Act of 2016), 4% reservation was required to be

provided to Disabled persons of various categories.

That apart, in terms of the Bihar Gazette notification dated

18.02.2016, 2% reservation was to be provided to the

grandsons/ granddaughters of freedom fighters (hereinafter

referred as, Wards of Freedom Fighters).

6. Similarly for E.W.S., out of 4638 posts, if 2319

posts would have been kept for Open Category, 231.9 posts i.e.

232 posts would be available for E.W.S. and 18.5 posts would

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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have been available for Physically Handicapped and 9 posts

would have been available for Wards of Freedom Fighters, if the

Reservation Act would have been applied uniformly to the total

number of posts.

7. The submission of the petitioner is that the

aforesaid statistics show that the reservation quota has been

wrongly applied in the advertisement by the respondents which

has not only resulted in lowering down the number of

O.C./General posts but has also lowered down the number of

posts which would have been available for Backward Classes,

while it has increased from more than 1% for Scheduled Tribe

and to women of Backward Class as well as for Scheduled

Caste. The advertisement does not anywhere mentions about

including of backlog posts. The learned counsel for the

petitioner have further pointed out that even if backlog posts

were to be added, the same has been wrongfully calculated. It is

further submitted that the law as laid down by the Apex Court

from time to time relating to filling up of posts under Article

16(4)(A) and 16 (4)(B) has been completely violated resulting

in depriving candidates from Open Category and from

Backward Class from their rightful consideration for

appointment.

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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8. In C.W.J.C. No. 17074/2022, the candidates

are from Disabled category and claims 4% reservation in terms

of The Rights of Persons with Disabilities (RPWD) Act of

2016, hereinafter referred as Disabilities Act of 2016. However,

it has been pointed out that of the total number of 4,638 posts,

only 8 posts have been reserved for Disabled Category, one each

in subject of English where there were 253 posts, Hindi where

there were 292 posts, History where there were 316 posts,

Political Science where there were 280 posts, Economics where

there were total 268 posts, Psychology where there were 424

posts, Botany where there were 333 posts and Mathematics

where there were 261 posts.

9. It is submitted that where there were more than

100 posts in a subject, 4 posts would be reserved for Disabled

Category in terms of the Disabilities Act of 2016, but the

provisions of the Act have been violated.

10. By gazette notification dated 03.09.2015, 2%

Horizontal Reservation was provided to the maternal or paternal

grandson or granddaughter of a freedom fighter in the

Government services vide another notification dated 18

th

February 2016, a model roster providing for the grandsons and

granddaughters of freedom fighters was notified by the State

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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Government. The petitioner in C.W.J.C. No. 5853/2021 applied

for the post of Assistant Professor in Home Science Department

but the same was not provided.

11. In C.W.J.C. No. 433/2021, the petitioners

claiming themselves to be from E.W.S. category have demanded

10% quota for E.W.S. and submit that out of the total number

posts namely 4,638 whereas only 309 posts have been kept

reserved for them. The learned senior counsel appearing for the

petitioners submits that the action of the respondents goes

contrary to the spirit of the Constitution. The reservation policy

could not have been applied in a negative form that is the

General/Open Category seats could not have been reduced to

such an extent as it would place them in minority. The principle

of keeping at least 50% posts as Open post for open

competition, could not have been violated.

12. Learned counsel further submits that in the

name of filling backlog vacancies the quota as prescribed under

the Reservation Act of 1991 and the roster to be applied has

been violated by the Commission and the State Government.

The respondents could not have applied the principle of backlog

vacancies to the current advertisement. It is asserted that after

2002, reorganization of Bihar State, there has never been any

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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selection process conducted twice. If backlog posts were to be

filled a separate exercise for filling backlog posts should have

been conducted and the present posts could not have been

reduced in the name of filling backlog.

13. It is also argued that the method and

manner in which the backlog posts have been calculated is

wholly erroneous and goes contrary to the principles laid down

by the Supreme Court and by this Court from time to time.

Learned counsel for the petitioner has

submitted that once a selection process has taken place, the

backlog posts can be only those which could not be filled in that

particular selection and the respondents could not have gone

beyond the previous selection for calculating backlog posts. The

criteria/ formula adopted by the respondents for filling backlog

posts is alleged to be wholly erroneous and mis-concieved.

14. Learned counsel further submits that the

reservation for Disabled Category under the Disabled Act of

2016 was to be applied horizontally in each category and the

same could not have been applied University-wise and

Department-wise. Similarly, the 2% reservation required to be

applied for the Wards of Freedom Fighters has to be on the basis

of total number of posts in a particular subject and not as per

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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each University.

It is asserted that when the selection is being

conducted commonly, the reservation has to be also applied

commonly to all the Universities. The respondents have not

mentioned about including the backlog posts and therefore

before this Court, the respondents cannot turn around and cover

their mistake by stating that the posts have been shifted on

account of backlog.

15. Learned counsel has relied on State of

Uttar Pradesh & Ors. Vs. Sangam Nath Pandey & Ors. 2011

(2) SCC 105, M. Nagraj & Ors. Vs. Union of India & Ors.

2006 (8) SCC 212 and Dr. Sudhir Kumar & Ors. Vs. The

State of Bihar & Ors. 2018 (2) PLJR 609.

16. Learned counsel appearing for the

University Commission submits that the reservation policy is

framed by the State Government and the requisition was sent by

the State Government after having consulted the concerned

Universities. A list of posts were provided to the Commission

available under each category for the various subjects for the

different Universities. Each University was treated as a unit and

the vacant post of Assistant Professor in different Universities

was considered and the roster was applied at the University

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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level in the subject. The University Commission has pointed out

from Table 2 that the reservation allocation was done

University-wise and the backlog posts were identified

University-wise. The same approach was adopted for horizontal

reservation also. Considering every University as a separate

unit, the roster point was allocated. In cases relating to Wards of

Freedom Fighters, wherever the roster point reached up to 50, 1

post was reserved in a particular University in a particular

subject and so on and so forth.

Similar stand has been taken for Disabled

Category also. Thus, if there is a post in a particular subject in a

particular University which are more than 25 available for

recruitment, 1 post of Disabled Category has been reserved.

17. Learned counsel Shri Subhash Chandra

Mishra has supported the submissions raised by Shri Pawan

Chaudhury on behalf of the Commission and further adds that

an amendment was made in the Reservation Act of 1991 and

adds that a proviso was added to Section 4 (1)(b), whereby

while filling up the backlog posts and carry forward vacancies

of previous year with respect to reserved class, the maximum

limit of reservation of 50% would have no application and the

same would be treated as separate and distinct class.

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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The respondent states that the word ‘vacancy’

was to mean posts in terms of the judgment passed in R.K.

Sabharwal & Ors. Vs. State of Punjab & Ors. 1995 (2) SCC

745. Further, it is stated that an amendment was made in the

Bihar State Universities Act 2013 and Patna Universities Act

authorizing Bihar Public Service Commission for making

recommendation for appointment of Assistant Professor. The

Commission conducted an exercise on the basis of requisition

sent from the Universities who did not indicate backlog/ carry

forward vacancies. The State Government passed a resolution

on 20

th

March 2014, deciding that out of the total number of

posts requisitioned by the University, 75% of the total vacancies

be filled up subject-wise as current vacancies as per roster

clearance and 25% was kept pending as backlog which were to

be filled later on. The B.P.S.C. was accordingly sent a

requisition for the year 2014 for which selection process has

been almost completed except for some subjects.

18. The respondents have filed a

supplementary affidavit which is stated as under :-

^^mnkgj.k Lo:i ex/k fo”ofo|ky; ds fdlh foHkkx esa lgk;d

izk/;kid ds in ij fu;qfDr ds fy, jksLVj fDy;j djuk gS ftldk

Lohd`r cy dh la[;k&77 gS] vU; lwpuk,a Hkh fuEu izdkj gS&

1- lafpdk ds voyksdu ls oLrqfLFkfr fuEuor~ gS&

(i)dqy Lohd`r cy&77

(ii)dksfVokj dk;Zjr cy&37 ¼xSj vkjf{kr oxZ&23] vR;ar fiNM+k

Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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oxZ 5 ,oa fiNM+k oxZ&9½

(iii) “kq) fjfDr& 77 – 37 = 40

(iv) jksLVj iath esa O;og`r vafre jksLVj fcUnq & 37

2- bl izdkj oÙkZeku esa dqy fjDr 40 inksa dk jksLVj fcUnq&38 ls

77 ds fo:) jksLVj Dyh;jsal djus dk izLrko gSA

cSdykWx dh x.kuk

dksfV vuqekU;rk dk;ZjrcSdykWx

¼dkWye 2&3½

1 2 3 4

vuqlwfpr tkfr23 x 2 x 16% =7.36= 70 7

vuqlwfpr tutkfr23 x 2 x 1% = 0.46 =10 1

vR;Ur fiNM+k oxZ 23 x 2 x 18% =8.28= 85 3

fiNM+k oxZ23 x 2 x 12% = 5.52=69-3 No Backlog

fiNM+s oxksZ dh

efgyk

23 x 2 x 3% = 1.38 =10 1

dqy cSdykWx & 12

“kq) fjfDr 40 – 12 = 28

dksfVokj vuqekU;rk

dksfV vuqekU;rkdk;Zjr $

cSdykWx

fjDr dkWye

¼2&3½

1 2 3 4

vuqlwfpr tkfr77 x 16% =12.38 = 120 + 7 = 75

vuqlwfpr tutkfr77 x 1% = 0.77 = 10 + 1 = 10

vR;Ur fiNM+k oxZ 77 x 18% = 13.86=145 + 3 = 86

fiNM+k oxZ 77 x 12% = 9.24 = 99 + 0 = 90

fiNM+s oxksZ dh efgyk77 x 3% = 2.31 = 20 + 1 = 11

dqy & 3826 12

mi;qZDr ls Li’V gS fd “kq) fjfDr 28 gS blds vyksd esaa

vkfFkZd :i ls detksj oxZ ,oa xSj vkjf{kr dh x.kuk fuEuor

dh tk,xh&

vkfFkZd :i ls detksj oxZ ds

vuqekU; in

fjfDr ¼28½ dk 10 izfr”kr =

28 * 10/100 = 2.8~3

vkfFkZd :i ls detksj oxZ ds

vuqekU; in

=dqy fjfDr & ¼vkjf{kr oxZ ds fy,

vuqekU; in $ vkfFkZd #i ls detksj

oxZ ds fy, vuqekU; in½ =

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Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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Patna High Court CWJC No.8932 of 2020 dt. 24-02-2023

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(iii) fu;qfDr ds Øe esa lHkh izpfyr fu;eksa@vf/kfu;eksa dks /;ku

esa j[kk tkuk visf{kr gSA **

19. In order to adjudicate the aforesaid issues,

this Court would categorize the adjudication in following

categories:-

(a)Backlog

(b)E.W.S. Reservation

(c)Disabled Category

(d) Wards of Freedom Fighters

20. Having noticed the aforesaid arguments,

this Court finds that the entire answer to the queries raised by

the petitioners is essentially of application of backlog vacancies.

The respondents have tried to explain that the backlog posts

were added in the present advertisement and therefore, there is a

disturbance of quota.

21. By the 81

st

Amendment Act to the

Constitution of India, Article 16 (4-B) was inserted. It

empowers the State from considering an unfilled vacancy of a

year which are reserved for being filled up in that year in

accordance with any provision for reservation made under

Clause 4 or Clause 4 (a) as a separate class of vacancies to be

filled up in any succeeding year or years and such class of

vacancies shall not be considered together with the vacancies of

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the year in which they are being filled up for determining the

ceiling of 50% reservation on total number of vacancies of that

year.

22. The Reservation Act of 1991 provided for

backlog as per Section 4 (6) of the Act is held as under:-

“(a) In case of non-availability of suitable candidates from the

Scheduled Castes and Scheduled Tribes for appointment and

promotion in vacancies reserved for them, the vacancies shall continue

to be reserved for three recruitment years and if suitable candidates

are not available even in the third year, the vacancies shall be

exchanged between the Scheduled Castes and Scheduled Tribes and

the vacancies so filled by exchange shall be treated as reserved for the

candidates for that particular community who are actually appointed.

(b) In case of non-availability of suitable candidates from the

Extremely Backward Classes and Backward Classes the vacancies so

reserved shall continue to be reserved for them for three recruitment

years and if suitable candidates are not available even in the third year

also, the vacancies shall be filled by exchange between the candidates

from the extremely backward and Backward classes and the vacancies

so filled by Exchange shall be treated as reserved for the candidates of

that particular community who are actually appointed.

[(c) In case of non-availability of suitable candidates for the vacancies

reserved for the women of backward classes, the vacancies shall be

filled in order of preference as follows :-

(i) by the candidates from the Scheduled Castes;

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(ii) by the candidates from the Scheduled Tribes;

(iii) by the candidates from Extremely Backward Classes;

(iv) by the candidates from Backward Classes;

The vacancies so filled in the transaction shall be treated as reserved

for the candidates of that particular community who are actually

appointed.]

(d) If in any recruitment year, the number of candidates of Scheduled

Castes/ Scheduled Tribes, Extremely Backward and Backward Classes

are less than the number of vacancies reserved for them even after

exchange formula the remaining backlog vacancies may be filled by

general candidates after dereserving them but the vacancies so

dereserved shall be carried forward for three recruitment years.

[(e) If the required number of candidates of Scheduled Castes,

Scheduled Tribes and Extremely Backward and Backward Classes

and Women of Backward Classes are not available for filling up the

reserved vacancies, fresh advertisement may be made only for the

candidates belonging to the members of Scheduled Castes, Scheduled

Tribes and Extremely Backward and Backward Classes and Women of

Backward Classes, as the case may be, to fill the backlog vacancies

only.]”

Further, Section 4 (1) is held as under:-

“All appointments to services and posts in an establishments

which are to be filled by direct recruitment shall be

regulated in the following manner, namely :-

(1) The available vacancies shall be filled up-

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(a) from open merit category ...50%

(b) from reserved category ...50%

[Provided that backlog and/or carry forward vacancies

would be treated as a separate and distinct class and will not

be considered together with the reserved vacancies of the

year in which they are being filled up, for determining the

ceiling of 50 percent reservation on total no. of vacancies of

that year. In Other Backward, 50 percent maximum limit of

reservation to be applied for the vacancies which fall in the

current year during which the process of filling up the

vacancies are being adopted and backlog and carry forward

vacancies of previous years with respect to reserved classes

would be treated as a separate and distinct class and would

be treated as a separate and distinct class and would be

exempted from maximum limit of reservation.]”

23. Thus, the recruitment agency has to

separately earmark backlog vacancies as a separate class and the

fresh vacancies have to be marked separately. The word

“backlog vacancies” is a term denoting those post of reserved

category which could not be filled in the previous recruitment.

24. In State of Uttar Pradesh & Ors. Vs.

Sangam Nath Pandey & Ors. 2011 (2) SCC 105, the Supreme

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Court has held as under :-

“27. In any recruitment year, it may

happen that the candidates belonging to the reserved

category may not be 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 cannot be intermingled with

the vacancies of the year of recruitment in which it is filled.

It also cannot be counted for the purpose of determining of

ceiling of 50% 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 provides for a total 50% reservation for

the categories of Scheduled Castes, Scheduled Tribes and

Other Backward Classes i.e. 21%, 2% and 27%

respectively.

28. 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% cap as contained in proviso 2 to

Section 3(1). The special recruitment may be held in that

very year or in the succeeding year or years of recruitment

as a separate class of vacancy.

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33. 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

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.”

(Underline is mine)

25. In Dr. Sudhir Kumar & Ors. Vs. The

State of Bihar & Ors. reported in 2018 (2) PLJR 609 which is

held as under :-

“63. While filling up of the vacancy on the basis of

reservation, rule of 50 per cent ceiling could be relaxed

only to the extent it is permissible in accordance with

Article 16(4-B) of the Constitution of India

64. In the present case, however, the core issue, which is

involved, is clearly different. The question is whether the

State respondents have carried out any exercise for

identifying backlog vacancies in accordance with the 1991

Act or not. The answer, in my view, is in negative, after

having seen the pleadings and the documents on record,

which have already been discussed.

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65. In view of the above discussions, following conclusions

are reached:-

(i) The impugned advertisement of the Bihar Public Service

Commission inviting applications for appointment to the

posts of Assistant Professor, to the extent it provides for

reservation in Superspeciality Departments, namely,

Cardiology, Nephrology and Neurology, cannot be

sustained, in view of the Supreme Court’s decisions, in the

cases of Indra Sawhney (supra), and Dr. Preeti Srivastava

(supra). The Bihar Public Service Commission is

accordingly directed to proceed with the process of

selection purely on the basis of merit for appointment in

these Superspeciality Departments.

(ii) In view of clear language used in Section 4 of the 1991

Act, only those vacancies can be declared backlog

vacancies within the reserved category, which, though, were

subject matter of a previous advertisement, but remained

unfilled because of non-availability of suitable candidates,

within the reserved category, after selection. No vacancy,

which has not been subjected to a complete process of

selection could be treated as backlog vacancy, in view of

the law laid down by the Supreme Court, in the case of

Sangam Nath Pandey (supra).

(iii) The relaxation given by the Supreme Court, in the case

of Sangam Nath Pandey (supra), to the State Government to

fill up backlog vacancy has no application in the present

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case, since the said relaxation, as is evident, was given in

peculiar facts and circumstances of that case.

(iv) Though, it is open to the State respondents to carry

forward a point in the event of non-availability of a suitable

reserved candidate at a roster point, the same has to be

done in just and fair manner, as observed by the Supreme

Court, in the case of R.K. Sabharwal (supra).

68. In view of the above conclusions, this application is

allowed with the following directions:-

(i) The State of Bihar is directed to identify the year-wise

backlog vacancies to be filled up by reserved category

candidates in conformity with the conclusion recorded

hereinabove, within one month from today and

communicate the same to the Bihar Public Service

Commission forthwith.

(ii) Since the selection in question pertains to appointment

of skilled Doctors for teaching and providing health

services to the common mass, in Government medical

colleges and hospitals in the State of Bihar, which is of

immense public interest and importance, it is directed that if

the said exercise is not done within the aforesaid period of

one month, the Bihar Public Service Commission will be

required to proceed with the process of selection and make

recommendation of names on the basis of reservation quota

fixed under Section 4(i) read with Section 4(ii) of 1991 Act.

This Direction, I am issuing in view of the emergent

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situation prevailing in the State of Bihar where many of the

medical colleges and many courses in the medical colleges

are either facing threat of de-recognition by the Medical

Council of India or unable to get recognition because of the

lack of teachers/faculty members.

(iii) The Bihar Public Service Commission is directed to

make selection for appointment in Superspeciality

Departments of Cardiology, Nephrology and Neurology,

strictly on the basis of merit alone.”

26. Keeping in view above, if the affidavit of

respondents is examined, it is apparent that in the last

recruitment conducted in 2014, a resolution was taken on 20

th

March 2014 by the State Government to fill only 75% vacancies

treating them as current vacancies, while 25% was to be kept as

backlog.

Thus, in the present selection process, the

University Commission was required to have a separate class of

backlog posts which would include the 25% vacancies which

were not recruited and any post of reserved category which

could not be filled under the 2014 selection process. These posts

alone can be said to be backlog posts.

27. This Court finds that the State

Government gave an erroneous formula to the respective

Universities for calculating the backlog. The formula as noted

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(supra) fails to take notice of those posts which are of Open

Category but filled by any meritorious reserved category

candidate. In order to find the backlog posts, it was essential for

the respondents to have first identified all the Assistant

Professors appointed earlier on their own merit from the

reserved category. Such Assistant Professors who may be

belonging to a particular category were not to be included in the

slot for treating the slot to have been filled of the said category.

Thus, relying upon the total number of persons who have

already been appointed from a particular reserved category, the

backlog cannot be assessed.

The new formula does not take into

consideration the resolution passed by the Government dated

20

th

March 2014, whereby 25% of the posts which were to be

filled in 2014, from all the Universities, were kept as backlog.

Therefore, prior to 2014, only 25% of the posts advertised in

2014 can be said to be backlog posts but the new formula

extends the calculation beyond the advertisement of 2014 from

the date of inception of posts in the various Universities. Thus,

the State Government has created a situation where almost 70%

of the posts fall in the Reserved Category. Even in the Reserved

Category, there is a complete imbalance of posts which does not

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either protect the Reserved candidates, nor it protects the Open

Category candidates.

28. Similarly, the sanction of posts has been

treated as on the day when the calculation is being done while

the sanctioning of posts is from time to time. At the initial

establishment of a University, the number of posts would be

different from the number of posts which are presently existing.

It is not uncommon to notice that the post of a particular subject,

in a University and its constituent colleges, may increase or

decrease. Thus, the very basis of calculating backlog posts by

the respondent State suffers from a basic fallacy and the same

could not have been applied generally to all the Departments in

all the Universities.

It is also to be noticed that in cases where the

posts are less than 9 in number, the roster to be applied is

different from the 100 point roster. The roster is “L” shaped and

every recruitment year a particular category may not get the

reservation.

29. The understanding of the respondents with

reference to R.K. Sabharwal (supra) is also erroneous. In R.K.

Sabharwal & Ors. Vs. State of Punjab & Ors. 1995 (2) SCC

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745, the Supreme Court has held as under :-

“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

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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 “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

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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 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.”

The aforesaid aspect is to be considered on the basis

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of the total number of posts at a given point of time. The

percentage is accordingly calculated. A 100 point roster is

therefore accordingly prepared. The respondents have not

considered the roster point which is continuous in nature. Till it

ends at number 100, as held by the Supreme Court (supra),

resulting in a situation, where the number of posts available for

Open Category comes to only 28%.

The Judgment passed by the Apex Court

never intended to create such an anomalous situation. The post

of Assistant Professor is a specialized post, where the concerned

person teaches students for awarding of Graduate and Post-

Graduate degrees. The application of roster and reservation,

therefore, has to be done with utmost care and caution.

30. The respondents have also not been

able to explain as to how the reservation has been applied

treating University as a unit when the University Act

provides for conducting a selection for all the Universities

by a common advertisement and a common examination.

Therefore, all the posts existing in the various Universities

will have to be counted together as one unit for the purpose

of application of the roster. If a different interpretation as

taken by the respondents is accepted, it would result in

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variation of the number of posts available in a particular

University of O.C. Class viz-a-viz Reserved Class. The

details from all the Universities were only required for

knowing the number of posts available for recruitment of

Assistant Professors in a particular subject, whereafter, the

respondents were required to add all the posts of various

Universities in a particular subject together and apply to the

roster. Backlog posts were also required to be identified

accordingly.

The said horizontal and vertical reservation

has to be applied to the total number of posts in a particular

subject and cannot be applied segregating the post available

in a particular University of a particular subject. As has

come on record, there are Universities which only require 1

post in a subject while in other University, there are posts

for the same subject which is more than 50 or 100. The

Reserved Category and Open Category candidates should

be distributed almost equally to all the Universities and the

same could be only applicable if the quota is applied to all

the number of posts in a subject which may be filled in a

particular University or several Universities.

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31. The sequence of operation of merit for

filling the post in various categories has been laid down and

settled by the Supreme Court in Saurav Yadav & Ors. Vs.

State of Uttar Pradesh & Ors. 2021 (4) SCC 542 and

reiterated in The State of Tamil Nadu Vs. K. Shobana 2021

(4) SCC 686, and it was held that the steps for filling up the

posts requires that the candidates from the Open merit list shall

fill up the post first, whereafter the backlog posts of a particular

Reserved Category shall be occupied by the respective Reserved

Category selected candidate. The remaining reserved posts of

the current year shall be filled as a third step.

In the present selections, the State did not

earmark backlog vacancies separately for the various subjects

and intermingled it with the current posts. Apart from applying a

wrongful formula of calculating backlog posts as discussed

above, it is noticed that the filling up of posts in certain subjects

which has already been done, is also erroneous. The steps as

required and laid down by the Supreme Court(supra) have not

being strictly adhered to.

Since in 2014, there were no backlog posts

considered, it is to be assumed that the exercise of filling

backlog posts has been done only in the present selection for the

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first time.

Therefore keeping in view the judgment

passed in Sangam Nath Pandey (supra), the backlog can be

only in relation to the post which were advertised and remained

unfilled in 2014 selection. From the perusal of the formula and

affidavit filed by the State, this Court finds that there are no

details of posts of Reserved Category which remained unfilled

in 2014 selection. It is further noticed that the 2014 selection

process is still not complete, and there are some subjects where

the appointments have not been made. In such subjects

therefore, there could be no backlog posts for being included in

the present selection, but there is no averment by the respondent

in their affidavit about the posts and hence it can be concluded

that in the present selection post which remained unfilled from

Reserved Category in 2014 have not been included.

Hence, the selection process of filling up

backlog posts along with the Open Category posts as has been

done in the present case by the respondent University is

erroneous and faulty.

32. From the record which has been placed

for the perusal of this Court, this Court is satisfied that the

exercise conducted by the respective Universities for identifying

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the backlog post suffers from non-application of mind and the

respondents have mechanically applied the formula

quota(supra). The said formula being illegal and contrary to the

scheme of reservation as provided under the Reservation Act of

1991, its application is held to be illegal.

33. After perusal of record, this Court finds

that a complete administrative chaos has resulted in a situation,

where in certain Universities, like in the subject of Persian

language in Bhupendra Narayan Mandal University only 1 post

is available. Similarly, in Jai Prakash Narayan University, there

is only 1 post for the Sanskrit subject. Similarly, for Munger

University, there is 1 post available in the subject of Sanskrit.

The respondents have not been able to explain as to how the

reservation would apply at such places. This Court finds that in

Ajit Singh Januja & Ors. Vs. State of Punjab & Ors. 1999

(7) SCC 209, the Constitution Bench held that there can be no

reservation on a single post. The post has been kept in the

subject of Arabic language for Scheduled Caste and for

Backward Class while 1 in the subject of Rural Studies, the post

has been kept unreserved. In matters relating to posts less than

9, the second post could also not be sent for reservation but the

respondents have applied wrongfully the said method which has

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resulted in wrongful application of the roster, which is not

sustainable in law.

34. Having noticed above law, this Court

finds that the respondents have miserably failed in identifying

backlog posts of reserved category.

E.W.S. CATEGORY

35. As regards the 10% reservation for E.W.S.

category is concerned, it is to be noticed that the reservation has

been provided after adding Article 16(6) to the Constitution of

India vide 103

rd

Amendment which came into force with effect

from 14.01.2019. Thus, the 10% reservation of the total number

of Open Category posts were required to be marked exclusively

for the E.W.S. category. The same has however been bifurcated

by the respondent to different Universities making them as

separate units.

36. In the aforesaid paras, this Court has

already held that the Universities were not individually

employing the candidates but the selection was being done for

all posts in all Universities and has already held such action of

identifying posts treating University as individual unit to be bad,

the action of bifurcating E.W.S. reservation, to ensure each

University treating as a separate for each subject, is illegal as it

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frustrates the very purpose of introduction of reservation for

Economically Weaker Section.

In 2022 SCC Online Page 1540 Janhit

Abhiyan Vs. Union of India, the aforesaid amendment added

to Article 16(6) has been upheld and the Apex Court has held as

under:-

“188. The amendment in question makes a reasonable

classification between “economically weaker sections” and

other weaker sections, who are already mentioned in

Articles 15(4), 15(5) and 16(4) of the Constitution and are

entitled to avail the benefits of reservation thereunder. The

moment there is a vertical reservation, exclusion is the vital

requisite to provide benefit to the target group. In fact, the

affirmative action of reservation for a particular target

group, to achieve its desired results, has to be carved out by

exclusion of others. The same principle has been applied

for the affirmative action of reservation qua the groups of

SEBCs, OBCs, SCs, and STs. Each of them takes

reservation in their vertical column in exclusion of others.

But for this exclusion, the purported affirmative action for a

particular class or group would be congenitally

deformative and shall fail at its inception. Therefore, the

claim of any particular class or section against its

exclusion from the affirmative action of reservation in

favour of EWS has to be rejected.

189. In fact, it follows as a necessary corollary to the

discussion in the preceding segments of this judgment that

looking to the purpose and the objective of the present

affirmative action, that is, reservation for the benefit of

economically weaker sections, the other classes, who are

already availing the benefit of affirmative action of

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reservation by virtue of Articles 15(4), 15(5) and 16(4), are

required to be kept out of the benefits of EWS reservation in

Articles 15(6) and 16(6). It could easily be seen that but for

this exclusion, the entire balance of the general principles

of equality and compensatory discrimination would be

disturbed, with extra or excessive advantage being given to

the classes already availing the benefit under Articles

15(4), 15(5) and 16(4). In other words, sans such exclusion,

reservation by way of the amendment in question would

only lead to an incongruous and constitutionally invalid

situation.

190. Putting it in other words, the classes who are

already the recipient of, and beneficiary of, compensatory

discrimination by virtue of Articles 15(4), 15(5) and 16(4),

cannot justifiably raise the grievance that in another set of

compensatory discrimination for another class, they have

been excluded. It gets, perforce, reiterated that the

compensatory discrimination, by its very nature, would be

structured as exclusionary in order to achieve its objectives.

Rather, if the classes for whom affirmative action is already

in place are not excluded, the present exercise itself would

be of unjustified discrimination.

191. Even a slightly different angle of approach would

also lead to the same result. The case sought to be made out

on behalf of the class or classes already availing the benefit

of Articles 15(4), 15(5) and 16(4) is that their exclusion

from EWS reservation is of inexplicable discrimination.

What this argument misses out is that in relation to the

principles of formal equality, both the reservations, whether

under the pre-existing provisions or under the newly

inserted provisions, are of compensatory

discrimination which is permissible for being an affirmative

action; and is to be contra-distinguished from direct

discrimination, which is not permissible.

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192. According to the petitioners, it is a case of their

direct discrimination when they have been excluded from

EWS reservation. The problem with this argument is that

EWS reservation itself is another form of compensatory

discrimination, which is meant for serving the cause of such

weaker sections who have hitherto not been given any State

support by way of reservation. SEBCs/OBCs/SCs/STs are

having the existing compensatory discrimination in their

favour wherein the presently supported EWS are also

excluded alongwith all other excluded classes/persons. As a

necessary corollary, when EWS is to be given support by

way of compensatory discrimination, that could only be

given by exclusion of others, and more particularly by

exclusion of those who are availing the benefit of the

existing compensatory discrimination in exclusion of all

others. Put in simple words, the exclusion of

SEBCs/OBCs/SCs/STs from EWS reservation is the

compensatory discrimination of the same species as is the

exclusion of general EWS from SEBCs/OBCs/SCs/STs

reservation. As said above, compensatory discrimination,

wherever applied, is exclusionary in character and could

acquire its worth and substance only by way of exclusion of

others. Such differentiation cannot be said to be legally

impermissible; rather it is inevitable. When that be so,

clamour against exclusion in the present matters could only

be rejected as baseless.

196. The above observations make it absolutely clear that

so far as the classes availing the benefit of compensatory

discrimination in the form of reservation under Article

16(4) are concerned, no further classification or special

treatment is to be given to them. A fortiori, they cannot

make a claim to intrude into other compensatory

discrimination in favour of another deserving group.

197. Having said so, even if it be assumed for the sake of

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argument that the amendment in question alters the existing

equality principles, it is not of abrogation or annulment of

the existing rights but could only be treated to be of

moderate abridgment thereof for a valid purpose. Thus

viewed, it cannot be said that the amendment in question

leads to such a violation of the rule of equality which is

shocking or is unscrupulous travesty of quintessence of

equal justice.

198. Viewed from any angle, the amendment in question

cannot be declared invalid as being violative of the basic

structure of the Constitution of India.”

DISABLED PERSON

37. The Section 3 and Section 34 of the

Rights of Persons with Disabilities Act 2016 provides for 4%

reservation. The Act has been passed by the Parliament and is

binds the State Government to provide 4% reservation to

Disabled persons in each category.

38. The specious plea as taken by the

respondents in applying reservations University-wise. of

reservation being applied University-wise and subject-wise and

that too in each University resulting in only 103 posts being

available for Disabled Category out of the total 4638 posts is

nothing but making the provision a laughing stock. It is only

2.2% of the total posts which is less than 4%. The Disabled

Category reservations are not to be seen with reference to a

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particular University but will have to be with reference to total

posts advertised for each subject alone. The posting of a

candidate in a University is based on his merit and choice. It is

settled position that the reservation is applied not at the initial

stage but at the time of appointment. If there are 25 or more

posts available for appointment in a particular subject, then one

post has to be reserved for Disabled Category.

The action of the respondents seeks to deprive

those persons who have been separately categorized not by the

society but by providence. Such persons cannot be allowed to be

deprived on account of faulty and handicapped method adopted

by the respondents. The reservation which is Horizontal in

nature will cut across the Vertical reservations meaning thereby,

if a person is of a Disabled Category, he shall be appointed even

if he belongs to any of the reserved category and would take

away a particular seat of that category. Interpretation of

provision is to be done in a manner that the purpose of the Act

of 2016 is achieved. The Government of India through

Secretary & Anr. Vs. Ravi Prakash Gupta & Anr. 2010 (7)

SCC 626, has held as under:-

“22. We have examined the

matter with great care having regard to the nature of

the issues involved in relation to the intention of the

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legislature to provide for integration of persons with

disabilities into the social mainstream and to lay

down a strategy for comprehensive development and

programmes and services and equalisation of

opportunities for persons with disabilities and for

their education, training, employment and

rehabilitation amongst other responsibilities. We have

considered the matter from the said angle to ensure

that the object of the Disabilities Act, 1995, which is

to give effect to the proclamation on the full

participation and equality of the people with

disabilities in the Asian and Pacific regions, is

fulfilled.”

Accordingly, the action of the respondents in

reserving the posts for Disabled Category which results in

frustrating to provide for 4% reservation is held to be illegal and

unjustified.

WARDS OF FREEDOM FIGHTERS

39. The State Government has by notification

dated 18.02.2016 provided 2% reservation for paternal/

maternal grandchildren of freedom fighters. Such a reservation

cannot be made otiose or ineffective on the basis of a special

plea taken by the respondents that as the roster for such

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reservation would fall at number 50 & 100 and therefore, till

there are 50 posts available in a subject in a particular

University, the reservation cannot be provided. This Court,

finds that there are several subjects where the number of posts

are 50 or more which are to be distributed amongst the 13

Universities. The reservation would therefore apply to the total

number of posts in all subject and not to the concerned

University as a unit. It is to be noted that the selection and

appointment is not University-wise but for all the Universities

together. Therefore, if a candidate coming from such category

(wards of freedom fighters) has applied in a subject where the

posts are 50 or above, he shall be entitled for consideration on

merit basis against one Horizontal reservation. Upon his

fulfilling the said post, one post of the category to which he

belongs shall be reduced.

40. Having reached to the aforesaid

conclusions, this Court finds that the bifurcation of posts done

by the respondent State and the Commission in its

advertisement dated 21.09.2020 is illegal and observed to be

reviewed in terms of the observations made above. It is most

unfortunate that in spite of their being a judgment passed by

Coordinate Bench in Sudhir Kumar (supra) laying down the

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method and manner in which backlog posts are to be identified,

the present litigation has ensued for the same errors.

41. The State authorities must create a separate

legal cell consisting of a separate cadre as is found in various

other State Governments as well as in the Central Government,

who would provide legal advice to the State executive

authorities with regard to the application of judgments and the

procedure to be followed in consonance with law for making

recruitments and appointments in the State and subordinate

services. It is the duty of the State to see that the litigation as

against it is reduced. Judgments passed by the High Court which

have attained finality on any question of law are required to be

followed in subsequent actions. It is unfortunate that for each

selection process, litigation is approaching to this Court

resulting in delay of the appointments. In fact, had the

respondents applied the judgment passed by this Court in

Sudhir Kumar (supra), the present litigation could have been

avoided.

42. This Court finds that the Commission has

proceeded with the selection process based on the aforesaid

advertisement. Candidates were called for interview category-

wise. Thus, when the number of posts had been reduced from

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the Open Category, B.C. Category, Disabled Category and Other

categories, candidates were also called less in number for

interview. As this Court has found the bifurcation of post to be

erroneous, the Commission would be required to call additional

candidates for interview from the various categories

additionally, according to revised bifurcation.

Therefore, it is directed that the respondents

shall revise the bifurcation of post on the principle of calculation

of backlog posts as observed as given hereinabove. The said

backlog posts shall be treated as a separate class. The post of

current vacancies shall be bifurcated in different categories

strictly in accordance with the provisions of the Act of 1991 and

by treating all the post in various Universities together subject-

wise. Backlog posts have to be mentioned separately and current

posts separately in the advertisement.

43. After conducting the aforesaid exercise, the

University shall call candidates for the posts, which are found to

have not been filled from the respective category, for interview

and recommend their selections accordingly.

44. Those selections, which have already been

made and concluded by the Commission, shall not be disturbed.

Meaning thereby, if candidates from Reserved Category have

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already been selected, they shall be deemed to have filled the

respective backlog posts and thereafter the posts meant for them

in current vacancies. Thus, posts which remained unfilled shall

be treated by the respondents to be meant for Open Category or

General category and the exercise as directed in the

aforementioned para shall be conducted for the said posts also.

45. In cases where the selections in subjects

this Court has restrained the respondents from giving

appointments or restrained from declaring the result, the

respondents shall after conducting the exercise of earmarking

the backlog posts as above, conduct the selection process for the

remaining post and declare the result together after calling for

interview additional candidates of the category as well as those

who would be called for interview in terms of the additional

posts earmarked for their category. The appointments shall

thereafter be made.

46. The candidates belonging to Disabled

Category and Wards of Freedom Fighters shall also be called

additionally for interview after calculating the number of posts

from all the Universities. The selected candidate shall have to be

replaced by such category candidate even if the said candidate

possesses higher merit. Similar exercise for E.W.S. Category

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shall also be done.

47. Keeping in view the interim direction

issued by this Court that all the selections have been once made

subject to the decision of this case, the aforesaid directions are

being issued.

48. The writ petition stands allowed. No cost.

sachin/-

(Sanjeev Prakash Sharma, J)

AFR/NAFR A.F.R.

CAV DATE 10.01.2023

Uploading Date

Transmission Date