Allahabad High Court
Dr. Brahma Nand Dwivedi And Others vs State Of U.P. And Others on 29 September, 2010
Author: Sunil Ambwani
Bench: Sunil Ambwani, Kashi Nath Pandey
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 23.7.2010 Judgment delivered on 29.9.2010 CIVIL MISC. WRIT PETITION NO. 22646 OF 2010 Dr. Brahma Nand Dwivedi and others vs. State of UP and others Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
We have heard Shri R.K. Ojha appearing for the petitioners. Shri Pankaj Saxena, earned Standing Counsel appears for the State respondents.
The petitioners hold degrees of Bachelor of Ayurvadic Medicine and Surgery from the recognized Ayurvedic Colleges in the State of U.P. in the year 2003 except Dr. Awadesh Pratap Singh-petitioner no. 3 with a degree from Rajkiya Ayurvedic College, Attara, Banda in the year 2001. They are aggrieved by the advertisement No. 6/09-10 of the Public Service Commission, U.P. advertising 338 vacancies of Medical Officers (Government Ayurvedic Hospitals) backlog. The advertisement invites applications to fill up 338 vacancies out of which 142 vacancies reserved for the doctors belonging to Other Backward Classes; 159 belonging to Scheduled Caste and 37 belonging to Scheduled Tribes.
The Public Service Commission,U.P. published the corrigendum dated April 1, 2010, to include vacancies as backlog vacancies on 51 more posts, increasing the total number of posts to 389 including 142 for OBC, 182 for SC and 65 for ST candidates.
Shri R.K. Ojha appearing for the petitioners submits that earlier an advertisement was issued in which 367 posts were advertised out of which 288 were to be filled up by Ayurvedic Medical Officers including 85 for Other Backward Classes; 180 for Scheduled Caste and 23 for Scheduled Tribe by advertisement dated 21-27.6.2003. In Writ Petition No. 45704/2003 filed by Shri Shashi Kant Rai this Court had stayed any appointment in pursuance to the advertisement dated 11.8.2008. The writ petition was withdrawn on 13.1.2009.
Shri R.K. Ojha submits that in that writ petition (Writ Petition No. 65734/2008) a counter affidavit was filed stating that out of total strength of Ayurvedic Medical Officers of 1780 posts, 1456 posts were already filled up and there were 324 vacant posts. He submits that out of 1456 there must be 393 OBC, 306 SC and 29 ST category doctors and thus the backlog should not be more than 103 OBC, 217 SC and 29 ST. In the counter affidavit, it was also stated that the appointment letters were issued in favour of the persons, who were selected in reserved category (backlog). Shri Ojha submits that according to counter affidavit, the backlog vacanties were already filled up and thus issuing an advertisement again for the same backlog vacancies on the posts is arbitrary and illegal.
We directed the State Government to file counter affidavit to find out whether any other petition has been filed challenging the selections and to explain the number of vacancies. After several adjournments a counter affidavit was filed which did not explain the position and thus we required to State to file a supplementary counter affidavit.
In the supplementary counter affidavit of Shri Daya Shanker Shukla, Medical officer, Incharge State Ayurvedic Hospital, Chaka, Allahabad filed on behalf of the State respondents, it is stated in paragraphs 4 and 9 as follows:-
4. That in the year 2003, against the sanctioned strength of 1780 post of Ayurvedic Medical Officers, 1456 persons were working out of which 1076 persons were of general category, 290 candidates were of O.B.C category, 89 candidates belong to S.C. Category and 1 person belongs to S.T category whereas in view of the reservation rules prevailing at that time, 890 posts were meant for general category while against this quota 1076 persons were working, meaning thereby that 186 persons were working in excess in the quota of general category. Similarly, against the 50% quota of reserved candidates which comes at 890 posts, only 380 persons belonging to reserved category were working and as such it is clear that 510 persons more were required to be posted against the quota of S.C candidates. Against the aforesaid post of 510 posts, 341 persons already selected and appointed through Public Service Committee have joined.
5. That at present the total number of vacancies of Ayurvedic Medical Officers upto 2009 are 2053 after deduction of 2% posts, the bifurcation of which is given as under:-
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01 142 159 37In the supplementary rejoinder affidavit, the aforesaid facts have not been denied. The petitioner has put a question in paragraph-5 that when the vacancies were increased from 1780 to 2053, and also once the backlog quota was complete, then how against newly sanctioned posts without advertisement backlog vacancies had arisen?. In substance it is stated that when the sanctioned posts were increased, the vacancy on such posts could not be treated as backlog vacancies and cannot be filled up, unless these backlog vacancies were advertised earlier. Shri Ojha submits that if against 1780 vacancies, 1456 persons were working and the respondents determined 348 vacancies for backlog quota, filled them after advertisement and the persons joined, there could be no further backlog quota to be filled up by the State.
Shri Pankaj Saxena, Standing Counsel has explained the facts in paras 4 and 5 of the supplementary counter affidavit. He submits that in the year 2003, as against the sanctioned strength of 1780 posts, 1456 persons were working out of which 1076 were in general category, 290 in OBC, 89 in SC and 01 in ST. At that time 186 persons were working in excess in the unreserved category, and that as against 890 posts against which 380 persons belonging to reserved category were working. At that time 510 more persons were required to be appointed in the reserved category. As against these 341 persons were already selected after recommendation of the Public Service Commission U.P., and were appointed. They have joined. At present as against total 2053 sanctioned posts after deducting 2% under the instructions of the State Government, there are only 2012 posts to be filled up. Out of these filled up 1679 posts, 1007 unreserved category, 401 in OBC, 264 in SC and 3 in ST. The State Government has thus rightly requisitioned 142 in OBC, 159 in SC, and 37 in ST for the 374 vacancies.
Shri Saxena would submit that in view of Section 3 (4) of the U.P. Public Services (Reservations for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and the law, as it has been explained after 81st and 82nd Amendments in M. Nagraj, the State Government could have advertised the reserved vacancies to be filled up in a recruitment year, even if the vacancies in general category, were not advertised. In the present case, he would submit that the entire unreserved category has been consumed except on one post, and thus no prejudice would be caused to the persons, who are expecting appointment in unreserved category.
In M. Nagraj vs. Union of India (2006) 8 SCC 212 the Supreme Court has, after referring to Indra Sawhney vs. Union of India (1992) Supp 3 SCC 217; R.K. Sabbarwal vs. State of Punjab 91995) 2 SCC 745, explained the Constitutional (81st Amendment Act, 2000, and held in paragraphs 82, 83, 95, 96, 97, 99 and 100 as follows:-
"SCOPE OF THE IMPUGNED AMENDMENTS
82. Before dealing with the scope of the constitutional amendments we need to recap the judgments in Indra Sawhney and R. K. Sabharwal. In the former case the majority held that 50% rule should be applied to each year otherwise it may happen that the open competition channel may get choked if the entire cadre strength is taken as a unit. However in R. K. Sabharwal, this Court stated that the entire cadre strength should be taken into account to determine whether the reservation up to the quota-limit has been reached. It was clarified that the judgment in Indra Sawhney was confined to initial appointments and not to promotions. The operation of the roster for filling the cadre strength, by itself, ensure that the reservation remains within the ceiling-limit of 50%.
83. In our view, appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling-limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based.
95. By clause (4B) the "carry-forward"/"unfilled vacancies" of a year is kept out and excluded from the overall ceiling-limit of 50% reservation. The clubbing of the backlog vacancies with the current vacancies stands segregated by the Constitution (Eighty-First Amendment) Act, 2000. Quoted hereinbelow is the Statement of Objects and Reasons with the text of the Constitution (Eighty-First Amendment) Act, 2000:
"THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000 (Assented on 9th June, 2000 and came into force on 9.6.2000) STATEMENT OF OBJECTS AND REASONS Prior to August 29, 1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of non-availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, were treated as "Backlog Vacancies". These vacancies were treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme Court of India in its judgment in the Indra Sawhney versus Union of India held that the number of vacancies to be filled up on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes combined together had already reached forty-nine and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per cent, it became difficult to fill the "Backlog Vacancies" and to hold Special Recruitment Drives. Therefore, to implement the judgment of the Supreme Court, an Official Memorandum dated August 29, 1997 was issued to provide that the fifty per cent limit shall apply to current as well as "Backlog Vacancies" and for discontinuation of the Special Recruitment Drive.
Due to the adverse effect of the aforesaid order dated August 29, 1997, various organisations including the Members of Parliament represented to the central Government for protecting the interest of the Scheduled castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make amendment in the constitution so that the unfilled vacancies 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 (4A) of Article 16 of the Constitution, shall be considered 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 the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before August 29, 1997.
The Bill seeks to achieve the aforesaid object.
THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000 (Assented on 9th June, 2000 and came into force on 9.6.2000) An Act further to amend the Constitution of India.
Be it enacted by Parliament in the Fifty-first Year of the Republic of India as follows :-
1. Short title :- This Act may be called the Constitution (Eighty-first Amendment) Act, 2000.
2. Amendment of Article 16 :- In Article 16 of the Constitution, after clause (4A), the following clause shall be inserted, namely :-
"(4B) Nothing in this Article shall prevent the State from considering any unfilled vacancies 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 (4A) 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 the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."
96. The Constitution (Eighty-First Amendment) Act, 2000 gives, in substance, legislative assent to the judgment of this Court in R. K. Sabharwal8. Once it is held that each point in the roster indicates a post which on falling vacant has to be filled by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies do not arise. Therefore, in effect, Article 16(4B) grants legislative assent to the judgment in R. K. Sabharwal8. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post-based, subject to replacement theory and within the limitations indicated hereinafter.
97. As stated above, clause (4A) of Article 16 is carved out of clause (4) of Article 16. Clause (4A) provides benefit of reservation in promotion only to SCs and STs. In the case of S. Vinod Kumar and another v. Union of India and others21this Court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also the view in Indra Sawhney.
99. This proviso was added following the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of this court in Vinod Kumar21which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4A).
INTRODUCTION OF "TIME" FACTOR IN VIEW OF ARTICLE 16(4B) :
100. As stated above, Article 16(4B) lifts the 50% cap on carry-over vacancies (backlog vacancies). The ceiling-limit of 50% on current vacancies continues to remain. In working-out the carry-forward rule, two factors are required to be kept in mind, namely, unfilled vacancies and the time factor. This position needs to be explained. On one hand of the spectrum, we have unfilled vacancies; on the other hand, we have a time-spread over number of years over which unfilled vacancies are sought to be carried-over. These two are alternating factors and, therefore, if the ceiling-limit on the carry-over of unfilled vacancies is removed, the other alternative time-factor comes in and in that event, the time-scale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the time-scale is not kept then posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate Government will now have to introduce the time-cap depending upon the fact-situation. What is stated hereinabove is borne out by Service Rules in some of the States where the carry-over rule does not extend beyond three years."
In M. Nagraj it was clearly held in para 96 that once it is held that each point in the roster indicates a post, which on falling vacant has to be filled up by the particular category of candidate to be appointed against it, and any subsequent vacancy has to be filled up by that category candidate alone, then the question of clubbing the unfilled vacancy with current vacancies does not arise. In effect Art.16 (4B) grants legislative assent to the judgment in R.K. Sabbarwal's case. If it is within the power of the State to make reservation, then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based subject to the replacement theory and within the limitation indicated in the judgment. The 50% cap on carry forward vacancy (backlog vacancy) was lifted by Art.16 (4-B) introduced by the Constitution 81st Amendment Act, 2000. The ceiling limit of 50% on current vacancies, however continued to remain. In working out the carry forward rule, it was cautioned in M. Nagraj, that two factors are required to be kept in mind, namely unfilled vacancies and the time factor. Where there are unfilled vacancies and there is a time spread over number of years over which the unfilled vacancies are sought to be carried over, are alternative factors, and therefore if the ceiling limit on the carry over or unfilled vacancies is removed, the other alternative time factors comes in and in that event, time factor has to be imposed in the interest of the efficiency in administration as mandated by Art.335. If the time factor is not kept, then the posts will continue to remain vacant for years, which would be detrimental to the administration. Therefore, in each case, the appropriate government will have to introduce a time cap depending upon the fact situation. In same sets the carry forward rule does not extend beyond 3 years.
In the State of Uttar Pradesh the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 was amended by U.P. Act No.1 of 2002 providing for filling up the reserved vacancies as separate class of vacancies:
"(4) Where, in respect of any year of recruitment, any vacancy reserved for any category of persons under sub-section (1), remains unfilled even after recruitment made under sub-section (3) or sub-section (3-A) or even after special recruitment under sub-section (3-B) such unfilled vacancy may be filled up in any succeeding year or years of recruitment as a separate class or vacancy and such class of vacancy shall not be considered together with the vacancies of the year of the recruitment in which it is being filled up, for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year."
In the present case we find that in the year 2003 as against the sanctioned strength of 1780 posts of the Ayurvedic Doctors, 1456 persons persons were working, out of 1076 were in general category, 290 in OBC, 89 in SC and 01 in ST. At that time 186 persons were working in excess in the reserved category and that as against 890 posts in the reserved categories only 380 persons were working. Even at that time 510 more persons were required to be appointed in the reserved category. The Public Service Commission, U.P. selected and appointed 341 persons in the reserved categories. All of them have joined. With these appointments at present there are 2053 sanctioned posts from which after deducting 2% under the instructions of the State Government there are only 2012 posts to be filled up. Out of these filled up 1679 posts, 1007 are in unreserved category, 401 in OBC, 264 in SC and 03 in ST. The State Government has, therefore, rightly requisitioned the balance 142 vacancies in OBC, 159 in SC and 3 in ST categories for a total number of 374 vacancies. The advertisement of these vacancies by way of filling up back log vacancies for reserved category do not violate the rules of reservation under U.P. Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Section 3 (4) of the Act as amended by UP Act No. 1 of 2002 provides for filling up the reserved vacancies as separate class of vacancies in any succeeding year or years of recruitment and such class of vacancies are not to be considered together with the vacancies of the year of recruitment in which they are being filled up for the purposes of determining the ceiling of 51% reservation of the total vacancies of that year.
We do not find any violation of Rules of Reservation or illegality in the subject advertisement.
The writ petition is dismissed.
Dt.29.9.2010 RKP/