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)

J U D G M E N T

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 25

th

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 India

1

. 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repealed the Uttar Pradesh Public Services (Regulation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 21

st

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 6

th

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 20

th

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 22

nd

December, 2000 for

filling up 945 such posts. The last date for making the

applications was 27

th

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 22

nd

/23

rd

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 9

th

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 6

th

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 6

th

October, 2005.

Thereafter by a letter dated 13

th

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 25

th

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

21

st

November, 2005 to 12

th

January, 2006 for 520 posts

for general recruitment and 367 posts for special

recruitment. The final results were declared

on 12

th

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 20

th

/22

nd

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 4

th

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 25

th

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 4

th

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 22

nd

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

India

3

and Ramesh Kumar Vs. High Court of

Delhi

4

. 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 25

th

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 4

th

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 1

st

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 25

th

October, 2005 pointing out that out of the 887

posts mentioned in the letter dated 13

th

October, 2005,

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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

34

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

35

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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