Allahabad High Court
Manish Upadhyay And 17 Others vs State Of U.P. And 3 Others on 10 February, 2017
Author: V.K. Shukla
Bench: V.K. Shukla, Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved on 15.11.2016 Judgment delivered on 10.02.2017 Case :- WRIT - C No. - 34196 of 2015 Petitioner :- Manish Upadhyay and 17 others Respondent :- State of U.P. and 3 others Counsel for Petitioner :- Agnihotri Kumar Tripathi,A.K. Saroj,Alok Mishra,Anand Prakash Paul,Anil Singh Bishen Counsel for Respondent :- C.S.C.,Ajay Kumar,Siddharth Khare Connected with Writ C Nos.58859/2014, 57478/2014, 10693/2015, 34533/2015, 34578/2015, 34581/2015, Writ A No. 35597/2015, 35737/2015, Writ C No. 34985/2015, 35082/2015, 35129/2015, Writ A No.39558/2015, 39453/2015, 37840/2015, 35069/2015, 36751/2015, 36986/2015, 37397/2015, 37428/2015, 38275/2015, 38399/2015, 38535/2015, 39785/2015, 39963/2015, 40316-2015, 40292/2015, 41134/2015, 42535/2015, 43580/2015, 45822/2015, 47894/2015, 50878/2015, Writ C No. 50977/2015, Writ A No. 34313/2015, 34317/2015, 34337/2015, 34372/2015, 34444/2015, 35831/2015, 35874/2015, 38774/2015, 44020/2015, 44290/2015, Writ C No. 49000/2015, Writ A No. 53014/2015, 53286/2015, 53338/2015, 58564/2015, 59773/2015, 60425/2015, SPLA No. 49/2016, 50/2016, 51/2016 52/2016 Writ-A 66604/ 2015, 6065/2016, 6284/2016, 8786/2016, 8446/2016, 8694/2016, SPLAD No.173/2016, Writ-A 13380/2016, 9594/2016, 9198/2016, 13568/2016, 13720/2016, 13331/2016, 13879/2016, 16041/2016, SPLAD No.283/2016, Writ-C No.17231/2016, Writ-A Nos.18521/2016, 19665/2016, 20505/2016, 18834/2016, 22487/2016, 22490/2016, 22733/2016 26408/2016, 26487/2016, 29532/2016, 27644/2016, 31484/2016, 31924/2016, 31488/2016, 37091/2016, 31922/2016, 43414/2016, and SPLAD-231/2016 Hon'ble V.K. Shukla,J.
Hon'ble Mahesh Chandra Tripathi,J.
(Per: Hon'ble M.C. Tripathi, J.)
1. We have heard Shri R.K. Ojha, Senior Advocate assisted by S/Shri Alok Mishra, Bhaskar Parihar, Akhilesh Singh and Ghanshyam Maurya for the petitioners; Shri P.N. Saksena, Senior Advocate assisted by Shri K.S. Yadav, Additional Advocate General and Shri Ravi Shanker Prasad, Additional Chief Standing Counsel for the State respondents; Shri M.N. Singh, Advocate for the Commission and Shri Ashok Khare, Senior Advocate & Shri G.K. Singh, Senior Advocate assisted by Shri Siddharth Khare, Shri Anoop Trivedi and Shri Om Prakash Tripathi for the selected candidates.
2. In this group of cases, the petitioners are assailing the validity of the Office Memorandum dated 12.10.2014 issued by the Uttar Pradesh Public Service Commission increasing the posts of OBC category from 566 to 2030 and the result declared on 21.5.2015 published on 22.5.2015 in respect of selection on the post of Uttar Pradesh Subordinate Agriculture Services Cadre-III (Technical Assistant Group-C) held in pursuance of advertisement dated 22.10.2013.
3. For the sake of convenience, the facts of Writ A No.34196 of 2015 are being noted below:-
4. Manish Upadhyay and others are before this Court with the following principal prayers:-
"i. Issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the result dated 21.5.2015 published on 22.5.2015.
ii. Issue a writ, order or direction in the nature of certiorari calling for the records of the case and to quash the Office Memorandum dated 12.10.2014.
iii. Issue a writ, order or direction in the nature of mandamus directing the respondents to prepare the result afresh without giving the effect of Office Memorandum dated 12.10.2014."
5. Brief facts which are necessary for disposal of the writ petitions are that the Uttar Pradesh Public Service Commission, Allahabad (hereinafter referred to as the Commission) issued an advertisement No.A-5,E-1/2013 dated 22.10.2013 inviting applications for 6628 vacancies of Subordinate Agriculture Services, Cadre-III (Technical Assistant Group-C). In the advertisement so issued 3616 vacancies were allotted to unreserved category (UR); 2211 vacancies were reserved for Scheduled Caste (SC) candidates of U.P.; 235 vacancies were reserved for Scheduled Tribes (ST) candidates of U.P., 566 vacancies were reserved for Other Backward Class (OBC) candidates of U.P., 132 posts were reserved for Dependents of Freedom Fighter (DFF) candidates of UP; 1325 vacancies were reserved for Women of UP, 331 vacancies were reserved for Ex-servicemen of UP and 253 vacancies were reserved for Physically Handicapped (PH) candidates. The petitioners, being eligible and fully qualified for the post in question, also applied for and were permitted to appear in the written examination, which was so held on 30.3.2014. The result of the written examination was declared on 15.9.2014 in which they were declared successful. After declaration of the result of the preliminary examination, the Commission issued an Office Memorandum dated 12.10.2014 increasing the posts of OBC category from 566 to 2030. However, the petitioners appeared in the interview held from 27.10.2014 onward. Finally, the result was declared on 21.5.2015, wherein the petitioners did not qualify due to aforesaid conversion of seats, giving rise to the writ petitions.
6. Shri R.K. Ojha, Senior Advocate assisted by Shri Alok Mishra, learned counsel for the petitioners submitted with vehemence that the petitioners possessed the essential qualifications and in pursuance of the aforesaid advertisement, they had also applied and disclosed all material facts in their online applications. The Commission had allowed them to appear in the written examination on 30.3.2014. The Director (Agriculture), Government of UP, Lucknow issued a letter on 1.6.2015 in respect of revised requisition for the post of Technical Assistant, Group-C (Grade-III). On 20.8.2014 the State Government approved the segregation of vacancies for different categories for sending the revised requisition for the post in question and in the revised requisition, 2515 vacancies were earmarked for unreserved category, 2030 vacancies for OBC, 1882 vacancies for SC and 201 for ST. The result of the written examination was declared by the Commission on 15.9.2014 in which the petitioners have been declared successful. After declaration of the result, the Commission adopted the amended requisition dated 20.8.2014 in which the entire status of the vacancies advertised have been changed and issued an Office Memorandum on 12.10.2014 declaring the schedule for interview in connection with the recruitment process initiated vide advertisement dated 22.10.2013.
7. In pursuance of the interim orders of this Court dated 29.4.2015 passed in different writ petitions, the result of 29 posts were withheld in different categories and against 6628 vacancies, the Commission had recommended 6599 successful candidates for the appointment and the recommendations were sent to the State Government vide letter dated 30.5.2015 wherein various illegalities have been committed. Out of total 6628 vacancies, 252 vacancies were reserved for PH category. Total 150 PH persons (UR-48, OBC-77 and SC-25) were selected out of which 84 (11+73) Partially Blind candidates (One Arm and One Leg) and 84 (19+65) Partially Deaf candidates, were selected in respective categories. The Commission stated that 27 posts were carried forward and thus, total 375 (150+225) candidates have been selected in PH category A+B. There are 123 (375-252= 123) excess selection done in PH category.
8. It has been alleged that the Commission had filed false affidavit in Writ A No.60634 of 2015 (Suryamani vs. State of UP and 3 ors) decided on 7.12.2015 and misled this Court that 27 unfilled vacancies in PH category have been forwarded to the State Government and on the said statement the Court had asked the State Government to return one post to the Commission and thereafter, exercise was directed to be carried out to offer appointment to the petitioner in the said writ petition within next four months. The Commission had withheld the result of 29 posts on account of interim order dated 29.4.2015 and therefore, only 6599 persons were recommended. If 27 vacancies had been carried forward, then only 6572 posts were recommended for appointment but on the record the Commission had recommended 6599 posts. The Commission had further committed an illegality in the selection process and reserved 330 posts under Ex-servicemen category vide letter dated 30.5.2015. It was stated by the Commission that none was available under this category. It is relevant to mention here that the result of the written examination was declared by the Commission and the cut off merit for ex-serviceman was fixed as 216. If there was no ex-servicemen candidate available, then for whom the cut-off merit was declared. The Commission had adopted an illegal process and procedure in conducting the entire selection.
9. The services on the post of Technical Assistant are governed by Uttar Pradesh Subordinate Agriculture Services Rules, 1993 (in short, 1993 Rules), which was amended vide notification dated 19.7.2011. Therefore, the aforesaid selection was held in accordance with 1993 Rules and the amended 2011 Rules. Apart from the aforesaid Rules, the U.P. Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993 (in short, 1993 Act) and U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (1994 Act) are also applicable to it. As per amended 2011 Rules, for direct recruitment on the post in question, the minimum age is 21 years and maximum age is 35 years on first July of the year of recruitment. However, the relaxation in age has been provided to the reserved category candidates as notified from time to time by the State Government. In the advertisement dated 22.10.2013 the age limit advertised by the Commission is contrary to the 1993 Rules. It was mentioned in the advertisement that candidates must have attained the age of 21 years and must not have crossed the age of 40 years on July 1, 2013 i.e. they must have not born earlier to second July, 1973 and not latter than July 1, 1992. The five years relaxation in age was granted to the candidates belonging to SC/ST/OBC/DFF.
10. It has been pointed out by Shri Alok Misra that 1994 Act stipulates that in public services, the post shall be reserved at the stage of direct recruitment and the following percentage of vacancies, to which recruitment are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to SC, ST and OBC of citizens- (a) namely in the case of SC - 21%; (b) in the case of ST - 2% and (c) in the case of OBC- 27%, provided further that reservation of vacancy for all categories of persons shall not exceed in any year of recruitment 50% of the total vacancies of that year as also 50% of the cadre strength of service to which the recruitment is to be made. In the aforesaid advertisement, in contravention to Section 3 (1) of 1994 Act, 33% reservation for SC and 3.54% for ST, instead of 21% and 2% to the SC and ST respectively, have been provided. After declaration of the result of written examination, the Commission had issued the Office Memorandum notifying the revised requisition and fixed the date of interview. The inter-se number of seats of different categories has been changed as UR-2515, SC-1882, ST-221 and OBC-2030 with total 6628 vacancies. During the pendency of the aforesaid advertisement, the number of vacancies for different categories has been illegally altered, which is in violation of Section 3 (1) of 1994 Act as well as constitutional mandate provided under Article 16 (4B) of the Constitution of India, which specifically prescribes the ceiling limit of 50% reservation on total number of vacancies of that year. In support of his aforesaid submissions, he has also referred to the well known principles concerning the concept of reservation laid down by Hon'ble Supreme Court in following cases: Indra Sawhney & ors vs. Union of India and ors (1992) Supp.3 SCC 217; M. Nagraj and ors vs. Union of India and ors (2006) 8 SCC 212; U.P. Power Corporation Limited vs. Rajesh Kumar and ors (2012) 7 SCC 1; Surajbhan Meena and another vs. State of Rajasthan and ors (2011) 1 SCC 467; Union of India vs. Veer Pal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh Januja vs. State of Punjab (1999) 7 SCC 209.
11. It was also submitted by the learned counsel for the petitioners that in M. Nagaraj's case (supra) Hon'ble Supreme Court has laid down certain conditions, which are required to be complied with by the State Government before providing reservation under Article 16 (4) of Constitution of India. The learned counsel for the petitioners relied on the following observations of Supreme Court:-
"As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50% (the numerical benchmark), the principle of creamy layer, the compelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are not obliterated by the impugned amendments. At the appropriate time, we have to consider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist compelling reasons of backwardness, inadequacy of representation in a class of post(s) keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside."
12. It was also submitted by Shri Alok Misra that Hon'ble Supreme Court, applying the aforesaid ratio in M. Nagaraj's case (supra) quashed the reservation policy of the respective states in Suraj Bhan Meena & another vs. State of Rajasthan & os and Uttar Pradesh Power Corporation Limited vs. Rajesh Kumar & ors's case (supra).
13. Section 3 (5) of 1993 Act provides that where due to non-availability of suitable candidates, any of the vacancies reserved under sub-section (1) remains unfilled, it shall be carried forward for further two selection years, whereafter it may be treated to be lapsed. However, violating the statutory provisions enshrined in 1993 Act, the Commission had not forwarded 330 vacancies reserved for ex-servicemen category. In dependent of freedom fighter category, there were 132 vacancies reserved and 37 candidates (General F.F.-21, OBC F.F-13, SC-03 and ST-00) were selected in different categories. As per letter dated 30.5.2015, total 45 candidates were selected in dependents of freedom fighter category out of which 4 candidates were selected in their respective categories on their own merits. Out of total 132 vacancies in dependent of freedom fighter category, only 45 candidates were selected and as per Section 3 (5) of Act of 1993, 87 vacancies were to be carried forward but as per recommendation, nowhere it is reflecting that remaining 87 vacancies have been carried forward.
14. In the women category, there were 1325 vacancies out of which only 156 women were selected and 90 female candidates were selected in their respective categories on their merits, however, 66 female candidates were adjusted after granting relaxation under horizontal reservation. Thus there were 1169 vacancies left unfilled in the female category. It is not clear in what proportion the unfilled 1169 female vacancies were distributed among the male category. However, in the result in question, it has been mentioned that unfilled vacancies in women category were adjusted only in reserved category male candidates. Another discrepancy has been found in the ST category, for which 201 vacancies were earmarked and only 25 ST candidates were selected out of which 6 ST candidates were selected in open category. Therefore, the Commission had illegally selected/adjusted 176 ST category candidates in ST category and there is a difference of 6 posts in the recommendation sent by the Commission vide letter dated 30.5.2015. The Commission had committed manifest illegality in the selection of total 2721 posts of Agriculture Technical Assistant Grade-III posts against 330 posts reserved for Ex-Servicemen category; 87 posts reserved for DFF category; 150 posts reserved for PH category; 6 posts reserved for SC category; 1169 posts reserved for women category and 979 posts reserved for OBC Diploma holders. Out of 6628 vacancies, 2721 posts have been illegally filled up by the Commission and the Commission has not only violated the statutory provisions as well as the dictum established by Hon'ble Apex Court in its various judgements to strictly adhere to reservation limit of 50%. The Commission had also committed illegality while following the provisions of horizontal reservation.
15. Learned counsel for the petitioners had advanced his argument on the question whether the upper limit of 50% is liable to be counted on the basis of vacancies occurred for the recruitment. They have averred in paragraphs 6, 7 and 8 of the rejoinder affidavit sworn on 5.4.2015 that the percentage of the SC/ST and OBC crossed the upper limit of 50%. The amended requisition of the vacancies are in violation of Section 3 of 1994 Act. He submits that in the PH category out of 252 vacancies, 150 candidates were shown to be selected in their respective categories i.e. General-48, OBC-77 and SC-25. However, the selection of PH category was shown to be 225. Section 3 (3) of 1993 Act specifically provides that the persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong, contrary to the aforesaid proposition of 1993 Act, the respondents had followed sub-section (3) for only 150 candidates in PH category. The counter affidavit filed by the respondent no.1 did not disclose that 225 candidates were adjusted in which category. If 27 vacancies were carried forward, then instead of recommending 6599 posts for appointment, the Commission would have recommended 6572 posts but the record reflects contrary to the averment stated in the supplementary counter affidavit. The respondents have not clarified that if 29 posts were withheld in pursuance of interim orders passed by this Court and 27 posts in PH category were carried forward, then why 6599 posts were recommended for appointment instead of 6572 posts. The respondents accepted that 330 vacancies under ex-servicemen category was not carried forward and were filled up from vertical vacancies, therefore, the selection process is in violation of Section 3 (5) of 1993 Act. Out of 132 vacancies of dependent of freedom fighter, only 45 candidates were selected while pursuant to Section 3 (5) of 1993 Act, 87 vacancies are ought to be carried forward but the action of the respondents is contrary to the 1993 Act. The selection process adopted by the respondent authorities is contrary to the Constitutional mandate provided under Article 16 (4B), which is quoted below:-
"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 or total number of vacancies of that year."
16. It is submitted that change in number of vacancies in different categories is illegal and the same amounts to changing the rule of the game in the mid of the process. For adequate representation of each category, three candidates qua vacancies are required to be invited for the interview. Thus, on the advertised number of seats for open category i.e. 3616x3 = 10848 were eligible under Rule 15 (3) of 1993 Rules for interview, however, by decreasing the number of seats i.e. 2515x3 = 7545 candidates were invited and thus 10848 - 7545 = 3303 candidates were illegally denied to appear in the interview. However, in the OBC category, only 566 vacancies were advertised against which only 1698 candidates would be eligible to appear in the interview. However, by illegally increasing the number of vacancies to 2030x3= 6090 candidates were invited for the interview. Thus in the OBC category, 6090-1698 = 4392 more candidates, who were not eligible as per advertisement dated 22.10.2013, were called for the interview. The change in number of vacancies for different categories is against Rule 15 (3) of 1993 Rules during the pendency of the advertisement, depriving 3303 unreserved candidates even to appear in the interview. In this regard, he has placed reliance on the judgement in P.K. Ramachandra Iyer vs. Union of India and ors (1984) 2 SCC 141; Maharashtra State Road Transport Corporation and ors vs. Rajendra Bhim Rao Mandve and others (2001) 10 SCC 51; K. Manjusree vs. State of Andhra Pradesh and another (2008) 3 SCC 512; Hemani Malhotra vs. High Court of Delhi (2008) 7 SCC 11; Barot Vijay Kumar Balakrishna and ors vs. Modh Vinay Kumar Dasrathlal and ors (2011) 7 SCC 308 and Tej Prakash Pathak and ors vs. Rajasthan High Court and ors, Civil Appeal No.2634 of 2013. In fact, the provisions of reservation have been misused and since the respondents have crossed the limit of 50% reservation as permissible under the Rules, therefore, the writ petitions are liable to be allowed.
17. Learned counsel appearing for the petitioners in the connected writ petitions supported the arguments advanced by Shri Alok Misra, learned counsel appearing for the petitioners in the leading writ petition.
18. Shri P.N. Saksena, Senior Advocate, Shri K.S. Yadav, Additional Advocate General, U.P. assisted by Shri Ravi Shanker Prasad, Additional Chief Standing Counsel, learned counsel appearing on behalf of the State respondents, on the other hand, made submissions drawing our attention to the counter affidavit and supplementary counter affidavit filed by the State that in pursuance of the advertisement in question, the petitioners appeared in the written examination on 30.3.2014. The result of the written examination was declared on 15.9.2014 in which they have been declared successful. It was alleged by the petitioners that the Commission had converted the particular categories of posts to the Other Backward categories. The advertisement dated 22.10.2013 shown the number of OBC posts as 566 while after converting all the categories of the posts to the OBC category, it shown as 2030 posts.
19. In support of their submission it has been stated here that the posts of Technical Assistant Grade-III is Class-III post, which is governed under the 1993 Rules. The post of Technical Assistant Group-C was restructured on 25.10.2007. The pay scale of the aforesaid post was fixed as Rs.3200-4900 and after restructuring of the aforesaid posts, total number of sanctioned post of Technical Assistant Grade-III was 10531. After restructure of the posts, the details of the vacancies were worked out in which it was found that 10531 posts were sanctioned posts out of which 5860 persons were working. However, on 3.10.2012 the requisition was sent to the Commission for selection of 4578 vacant posts, out of 10531 sanctioned posts after deducting 2% from the total number of vacant posts 4671. However, in the meantime the number of sanctioned posts were increased and after increase of the sanctioned posts as well as on account of vacancies occurred during the course, an exercise was made and it was worked out that apart from the requisitions sent earlier, the total number of increased vacant posts was 2092 out of which as per the Government order dated 5.3.2002, 2% has been reduced and vide requisition dated 30.4.2013, a requisition was sent showing the 2050 increased vacant posts out of which total number of vacancy against the OBC quota was shown as 554. In the earlier requisition dated 3.10.2012 the total number of vacancy against the OBC quota was shown as 12, thus after sending the second requisition total number of vacancy against the OBC quota was shown as 566.
20. Thereafter, the Department of Agriculture determined the number of vacancies to fill up the existing vacancies of the year 2013 and sent it to the State Government. Accordingly, the State Government again sent requisition to the Commission on 30.4.2013 showing total number of 6628 posts out of which 3616 posts were shown to be filled up by general category candidates; 2211 posts shown against SC Candidates; 235 posts reserved for ST candidates and 566 posts were reserved for OBC candidates. Accordingly, the Commission published an advertisement dated 22.10.2013 for filling up total 6624 (4578+2050) vacancies for the post in question. The sub division of the aforesaid posts was shown as 3616 for unreserved, 2211 for SC, 2335 for ST, and 566 for OBC and the horizontal reservation was also shown as 132 DFF, 325 for Women, 331 for Ex-Servicemen and 253 for PH. As per examination schedule, the written examination was held on 30.3.2014.
21. After the publication of the vacancy, a complaint was filed before the State Backward Commission, Uttar Pradesh alleging that instead of showing actual vacancies of OBC category, the number of posts had been wrongly shown as 566 in the advertisement. After this complaint, the department as well as Commission were asked to submit reply on the aforesaid allegations. Moreover, the Commission had also sent a letter dated 15.7.2014 to the Chief Secretary, Government of UP pointing out the defect in the requisition and requested to rectify it. The Chief Secretary, Government of UP directed the Principal Secretary, Agriculture to take action. On account of the said complaint and the orders of the authority, an exercise of working out vacancies on the date of advertisement was done and accordingly, on 20.8.2014 a revised requisition was sent after working out the actual vacant posts on the date of advertisement for selection of 6628 posts. The department found that in fact the actual vacancies for unreserved category were 2515, 1882 for SC, 201 for ST, and 2030 for OBC. After receiving the said revised requisition, the Commission declared the result of the written examination on 15.9.2014. In this regard, an Office Memorandum was notified on 12.10.2014 by which the revised requisition was notified and the date of interview was scheduled. As per the schedule, interviews were held in between 27.10.2014 to 2.5.2015 and the candidates, who were declared successful in the written examination, were called for the interview and the interview took place.
22. It is sought to be contended on behalf of respondents that the petitioners without any protest against the revised requisition appeared in the interviews and the final result of the selection was declared on 21/22.5.2015 but the name of the petitioners could not figure in the select list. On the merits, the petitioners could not get success in the final selection. After finding themselves unsuccessful in the selection on merits, the petitioners have filed these writ petitions. In the meantime, the Commission sent the names of the selection/recommended candidates on 30.5.2015. Out of 6628 posts, total number of 6599 candidates were recommended out of which 2488 candidates belong to UR category, 1881 SC category, 25 ST category and 2029 OBC category. The rest of the advertised posts were kept reserved in compliance of the orders of this Court. Some selected candidates filed a Writ Petition No.6211 of 2015 (Kamal Kumar and ors vs. State of UP and ors) and learned Single Judge of this Court had proceeded to dispose of the said writ petition on 15.12.2015 with a direction to the Principal Secretary (Personnel Department), Government of UP to issue appointment letters in favour of the selected/recommended candidates. In compliance thereof, the Principal Secretary vide his order dated 22.12.2015 directed the authorities for issuance of the appointment letters. It has been submitted that in the backdrop of the facts stated above and keeping in mind the interim order passed on 3.1.2014 in Special Leave to Appeal (Civil) No.37849 of 2013 (State of UP vs. Sumit Kumar Shukla and ors); the interim order dated 9.4.2013 in Special Leave to Appeal (Civil) No.8396 of 2013 (State of UP vs. Sanjeev Kumar Singh) and pending cases before Hon'ble Apex Court in respect of issue of validity of the continuation of the provision of Section 3 of Act No.4 of 1994, it is required to be assumed that Section 3 of Act No.4 of 1994 is valid and not unconstitutional.
23. Shri P.N. Saksena, Senior Advocate further submitted that the State has endeavoured to achieve the object of the reservation working out the vacancy for selection of the posts in question without prejudicing the grievances of the UR candidates. The percentage of reservation is determined on the basis of the cadre strength. All calculation must be based by taking the post as a unit. Once the calculation of vacancies was made on the basis of cadre strength, then there is no overlapping at all. In paragraph-10 of the counter affidavit, it has been clearly averred that once the total strength of the cadre is 10559, then the only requirement to complete this quota by appointing 5230 candidates from the general category being 50% of the limitation. The total working strength against UR category is 2713 and thus filling up the 2515 posts fulfills the requirement of 50% quota and there is no overlapping at all. On the date of advertisement the total number of working employees was 3796 out of which 297 were working against the SC category, 6 against the ST category, 780 against the OBC category and 2713 for the general category. Thus the vacancy, which was revised shows the actual position of the requirement i.e. 1882 for SC, 201 for ST, 2030 for OBC and 2515 for UR category.
24. It is sought to be contended that the quota of 21% for SC comes to 2217 posts, out of which 297 persons are working and it comes to 2.81% in the SC quota. The rest of 1920 vacant posts comes to about 18.18% and after deduction of 2% as per the Government order, the revised requisition for 1882 posts against SC quota has come to 18.18%. Likewise against 2% quota for ST category, total 211 posts were earmarked, out of 10559 posts and 6 persons belonging to ST category are working, which is .05% and the rest of the 205 posts comes to 1.94%. After deduction of 2%, 201 posts were sent in the revised requisition.
25. So far as 27% posts of OBC category is concerned, total number of posts is 2851, out of 10599 and 780 persons belonging to OBC category are working, which comes to 7.38% and the rest of 2071 posts comes to 19.61%. Similarly, number of UR posts under 50% quota is 5230 out of total strength 10559. In the same way, 2713 employees are working against the UR quota, which comes to 25.69% and the rest of 2567 posts required to be completed 50% quota, which comes 24.31%. Chart showing the details of the cadre post and the vacancy alongwith the percentage is given below:-
Total number of sanctioned posts 21% for Scheduled Caste 2% for Scheduled Tribe 27% Other Backward Classes 50% for unreserved category 10559 2217 211 2851 5280 3796 employee are working 297 (2.81%) 6 (.05%) 780 (7.38%) 2713 (25.69%) 6763 (vacancies) 1920 (18.18%) 205 (1.94%) 2071 (19.61) 2567 (24.31) After 2% deduction as per Govt. order 1882 (17.82%) 201 (1.90%) 2030 (19.22%) 2515 (23.81%)
26. It has been submitted that from the aforesaid details of the cadre and the working strength of the UR employees, it is clear that the percentage of 50% notified vacancies have not overlapped the limit prescribed by the Act No.4 of 1994 and none of the UR category candidates would be deprived of any posts, which ought to have legitimately fallen to their share. Moreover, no prejudice would cause to the UR candidates and they have no right to challenge the sub division of the revised posts. It has been submitted on behalf of the respondents that after calculating the vacancies on the basis of cadre, there is no overlapping at all.
27. With regard to the questions raised by the petitioners, that the absorption of the diploma holder should be governed by the rule of regularization under which the provision of reservation has to be maintained, it has been submitted that the diploma holders, who had passed in between the years 1981-1987 from the institution, have right of appointment on the date of passing and the matter was under consideration with the department. Paragraph-10 of the counter affidavit clearly specifies the position and once the person, whose right has accrued prior to the enactment of the Reservation Act, 1994 and the government as a policy matter has decided to appoint all the passing out candidates upto 87 batch vide Government order dated 4.6.1998. All the passing out candidates were offered appointment as a fresh. These persons have not been regularized under any regularization rules, thus the question of regularization rule could not arise.
28. In reply to the averment made in paragraph-16 of the supplementary affidavit, it has been submitted that the appointment of the Technical Assistant Grade-III has been conducted in accordance with procedure prescribed by law and the selections were made perfectly in accordance with law. There is no violation of service in rule. The selection was held for filling up 6628 posts and the recommendation sent by the Commission has been considered. In respect of providing appointment letter, an order was passed by this on 15.12.2015 in Writ Petition No.62112 of 2015 and in pursuance thereto the Government has issued a direction on 22.12.2015 and a direction had been issued to the appointing authority for issuance of the appointment letter in favour of 5659 candidates out of 5693 candidates. For the rest 35 candidates, the selection has yet to be finalized on the reason that their documents have not been received from the Commission. So far as the letter dated 31.7.2014 issued by the Agriculture Directorate is concerned, no requisition was sent through the said letter to the Commission and the requisition amended by the State Government vide letter dated 20.8.2014 was sent by the Agriculture Directorate vide its letter dated 20.8.2014 to the Commission.
29. The direct recruitment through Commission was divided into two stages and in first stage of the selection, the selection would be done by the Commission as per the selection regulation or rule while later part of the recruitment has been entrusted with the Government/appointing authority under the recruitment rules. The selection regulation/rule does not require from the Commission to make selection of category-wise candidates. It only requires the recommendation of select list upto 25% above all total vacancies. Section 3 of the Act No.4 of 1994 provides that in public services and posts there shall be reservation at the stage of direct recruitment as per the percentage prescribed under this Act. Section 4 of the Act imposes responsibility & power for compliance of the Act and on failure the penal provision has been prescribed in Section 5 of the Act. Section 2 (a) of the 1994 Act defines the appointing authority in relation to public services and posts and means the authority empowered to make appointment to such service or post. Section 3 of 1994 Act does not require reservation at each and every stage of selection but it requires at the stage of actual final recruitment/appointment. In view of the aforesaid settled proposition of law, the State Government or the appointing authority was wholly competent to revise the requisition and ask the Commission to make the selection as per the revised requisition. Since the earlier requisitions on account of the wrongful calculation could not confer any right to the general category candidates to compel to perpetuate the wrongful calculation and nullify the provision of Section 3 of 1994 Act. The rectification of vacancies of OBC category during the selection process did not breach any legal right which vitiates the process of selection and recommendation. It is a settled law that the selection has to be made by the Commission and the Government or appointing authority has to fill up the post by appointing those selected and recommended candidates by the Commission adhering to the order of merits in the list of candidates sent by the Commission. The selection and preparation of the selected candidates list by the Commission is only a recommendation and the final authority for the appointment is the Government or appointing authority. Moreover, it is open to the Government or authority to decide how many appointments will be made subject to the passing of the test of reasonableness. The modification, revision or rectification of the requisition did not confer any right to the candidates as against 50% posts is required to be filled up by the reserved candidates. Once after sub-division the reservation is within the permissible limit of 50%, the grievance of the general category candidates cannot be entertained. He has placed reliance on the judgements in Jammu and Kashmir Public Service Commission and ors vs. Dr. Narendra Mohan and ors (1994) 2 SCC 630 (para-8); Madan Lal and ors v. Jammu and Kashmir and ors AIR (1995) SC 1088 (paras 21 &22); Union of India and ors vs. S. Vinod Kumar and ors 2007 (8) SCC 100; Dhananjay Malik v. State of Uttranchal and ors (2008) 4 SCC 171; Sadananda Halo and ors vs. Momtaz Ali Sheikh and ors 2008 (4) SCC 619; Vipin Bihari Singh and ors v. State of UP and ors 2010 (1) UPLBEC 26 and Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and ors 2011 (1) SCC 150.
30. It has been submitted that in the present case also the revised requisition was notified on 12.10.2014 and the petitioners having full knowledge of the revised requisition appeared in the interview held from 27.10.2014 to 2.5.2015 and took a chance to get selected and after failure on merits they ceased their right to challenge the result or selection. Since they have filed the writ petitions after declaration of the result, therefore, they have estopped from complaining in view of the settled law of Hon'ble Supreme Court. Lastly, it has been submitted that the writ petitions are liable to be dismissed on the ground of absence of necessary party in the writ petition. The petitioners have not impleaded the selected candidates as necessary party of the proceeding and after joining they have acquired the vested right and that right cannot be unsettled. The proposition of law to implead the selected candidates as necessary party has been settled by Hon'ble Supreme Court in All India Scheduled Caste and Scheduled Tribe Employees Association vs. A. Arthur Jeen (2001) 6 SCC 380 (paras 13 and 4) followed in case of Sadanand Halo's case (supra). He submitted that in view of the aforesaid submission and in the light of judgements referred as above, the writ petitions have no merits and are liable to be dismissed.
31. Learned counsel appearing on behalf of the respondents has placed his reliance in Hoshiar Singh v. State of Haryana and ors (1993) Suppl. (4) SCC 377 (paras 2,3,4,6 and 10) in which Hon'ble Supreme Court upheld the recruitment of revised requisition from 6 posts to 8 posts, which was amended after holding the written examination. He has also placed reliance on the judgement of Supreme Court in the case of R.K. Sabharwal and ors vs. State of Punjab and ors 1995 (2) SCC 745 in which it was held that the cadre strength is always measured by the number of posts comprising the quota. The word 'post' means an appointment, job, office or employment. Right to be considered for appointment can only be claimed in respect of a post in a cadre. The percentage of reservation has to be worked out in relation to number of posts, which form cadre strength and the concept of vacancy has no relevance in operating the percentage of reservation. Paragraph-6 of the judgment is reproduced as under:-
"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."
32. It has been submitted that the revised requisition clearly states that in the selection the roster is in operation and once the roster is in operation, rule of 50% in a recruitment year itself ensures that the reservation remains within the 50%. The issue whether after the operation of the roster the 50% limit of the year of recruitment will cross or not has been decided by Hon'ble Supreme Court in R.K. Sabharwal's case (supra) in which in paragraph-8 it has been held that the operation of a roster for filling the cadre strength, by itself, ensures that the reservation remains within the 50% limit. He has also placed reliance on the judgement of Supreme Court in Indra Sawhney's case (1992) Suppl (3) SCC 217 in which it has been held that the number of vacancies to be filled up on the basis of reservation in a year including carried forward reservation should in no case succeed the limit of 50% as total reservation for a year for the SC, ST and OBC combined together has already reached 49.50 and the total number of vacancy to be filled up in the year could not succeed 50%. In such circumstances, when the Government has found it difficult to fill up the vacancies of reserved category, the Government after considering the various representations reviewed the position and has decided to make amendment in the constitution so that 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 4A of Article 16 of Constitution shall be considered as separate clause of vacancy to be filled up in any successive year or years and such clauses of vacancy shall not be considered together with the vacancy of the year in which they are being filled up for determining the ceiling of 50% reservation on the total number of vacancy of that year.
33. The Parliament by 81st Amendment Act, 2000 amended the Constitution and inserted Article 16 (4B) of the Constitution. The validity of 81st constitutional amendment was challenged before Hon'ble Supreme Court in M. Nagaraj and ors vs. Union of India and ors reported in 2006 (4) AWC 4054 (SC) and Hon'ble Supreme Court while holding the validity of the amendment categorically considered the Indra Sawhney's case (supra) and R.K. Sabharwal (supra) vide paragraphs 82 and 83 of the judgement. It was further held that appropriate government has applied the cadre strength as a unit in the operation of the roster in year to ascertain whether the given clause or group is adequately represented in service. The cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. Roster has to be post specific and not vacancy based. Once in R.K. Sabharwal's case it has been held that the operation of the roster in filling the cadre strength, by itself, ensure that the reservation remains within the ceiling limit of 50%, then there is no question arises for overlapping in the present case. In the present case, there is neither overlapping nor violation of any rules.
34. Shri M.N. Singh, learned counsel appearing for the Commission submitted that the advertisement in question was published on 22.10.2013 for recruitment of 6628 posts (UR-3616, SC-2211, ST-235 and OBC-566) of Subordinate Agriculture Service Grade-III (Technical Assistant Group-C). The horizontal reservation was also provided to DFF (132), women (1325), Ex-army men (331) and PH persons (253). In reference to the aforesaid advertisement, the letter dated 20.8.2014 alongwith amended requisition was sent by the department concerned to the Commission. In the amended requisition the distribution of seats amongst different categories were given with total 6628 vacancies (UR-2515, SC-1882, ST-201 and OBC-2030). The horizontal reservation was provided to dependents of freedom fighter (132), women (1325), Ex-army men (330) and PH (252, PB-84, OL-42, PD-84, OA-42).
35. The Commission declared the result according to amended requisition for the posts in question. The Commission does not have power to convert or amend the requisition sent by the Government/Department. No conversion in respect of vacancies into a particular category has been made by the Commission, because the Commission cannot travel beyond the requisition sent by the Government/Department. The final result was declared in the light of 1994 Act in which it has been provided that if any candidate belonging to reserved category gets selected with unreserved candidates on the basis of merit in the open competition, he would not be adjusted against reserved vacancies. Having no cognizance of the above facts, the misinterpretation is being made about the ratio i.e. above 50% representation in different category of the reservation. No discrimination or illegality has been committed by the Commission. Total 225 vacancies of PH category have been filled up from the identified sub-categories of PH as per their merit according to provisions contained in the Government order dated 24.6.2013. The remaining 27 vacancies were left unfilled due to non-availability of suitable candidates under PH sub-category and accordingly, 27 vacancies have been carried forward to the Government/department. The selection amongst sub-categories of PH has been completed by the Commission as per amended requisition.
36. As per amended requisition dated 20.8.2014 for Ex-servicemen 330 vacancies were reserved against which only one candidate was declared successful in the written examination and he obtained 216 marks which is cut off mark of Ex-servicemen category. However, he did not appear in the interview. The Commission has not committed any illegality in declaring or preparing the final result. Due to non-availability of candidates these horizontal 330 vacancies were filled up from vertical vacancies. There were 132 vacancies reserved for candidates of DFF and against these 132 vacancies, 4 candidates (1 candidate from OBC category and 3 candidates from UR category) were selected on their own merit. Against 41 vacancies, 22 candidates from UR, 16 candidates from OBC category and 3 candidates from SC category were selected under DFF. There were 1325 vacancies reserved for Women candidates and out of 1325 vacancies, 156 vacancies were filled up from Women candidates. Total 201 vacancies were reserved for ST candidates and against these 201 vacancies, only 25 candidates of ST category were available and they were selected under the ST category. So far as the selection of 6 candidates is concerned, it is submitted that they were although ST candidates but they were selected in open category. The remaining 126 (201-25=176) vacancies were filled up from SC candidates in the light of Notification dated 10.12.2007 and there is no illegality in the selection.
37. Shri Ashok Khare, Senior Advocate and Shri G.K. Singh, Senior Advocate, appearing for newly impleaded respondents/selected candidates submitted that the applicant no.1 namely Mem Singh belongs to Scheduled Caste, while Naresh Pal, Subhash Chand and Sudhir Kumar-applicant nos. 2 to 4 belong to Other Backward Class. All the applicants being fully qualified/eligible had applied for consideration for appointment on the post in question. They were allotted their roll numbers and thereafter they participated in the selection proceedings. The written examination was held on 30.3.2014 in which their names were shown as qualified. Thereafter the applicants were called for participating in the interview on different dates in the month of December, 2014. All the applicants participated in the interview held on different dates in December, 2014. The final result of the selection was published on 21.5.2015 in which they have been shown as duly selected. The select list has been forwarded by the Commission to the State Government but the State Government has not proceeded further. The applicants are duly selected candidates and none of the selected candidates have been impleaded as respondents in the writ petition. All the petitioners participated in the interview and took a chance to be finally selected. After having failed to get finally selected, they have filed the present writ petition, which is liable to be dismissed.
38. Shri Om Prakash Tripathi, appearing for Ram Gopal and 15 ors/newly impleaded respondents (selected candidates) submitted that after passing written examination and interview, the applicants were selected for appointment on the post in question by the Commission. Their roll numbers and ranks have been given in paras 5 to 19 of the affidavit filed in support of impleadment application filed on 29.9.2016.
39. Shri Anoop Trivedi, learned counsel appearing for the some of the selected candidates/proposed respondents submitted that in the selection process the number of posts shown to be filled up under OBC quota were exceeding the prescribed limit of 27%. There are total 10599 sanctioned posts in the cadre of Technical Assistant (Group-C) in Grade-III out of which 3596 posts have been filled and the remaining are vacant in the said cadre. As per sanctioned strength of the cadre, 5280 posts fall within the UR quota whereas 2851 posts fall under 27% reservation for OBC and 211 posts fall within the quota fixed for ST under 2% quota. Total 3596 persons are already working, out of which 2713 belong to UR category amounting to 25.69% of the number of posts in UR category and 780 candidates belong to OBC, which amount to 7.38% of the quota. There are 297 persons belong to SC category are already working, which amounts to 2.81% quota of the entire cadre and 6 ST employees are working in the cadre whereas there ought to have been 211 employees. Therefore, 2567 posts are vacant in UR, which is 24.31% of total sanctioned strength of the cadre. He submits that the decision taken by the Government on 20.8.2014 proposing to fill up 2515 posts by UR candidates, 2030 posts from OBC, 1882 posts from SC and 201 posts from ST does not suffer from any infirmity, inasmuch as the sealing for each category of reservation is not exceeding in the cadre. He has placed reliance on the judgement of Supreme Court in State of UP vs. Sangam Nath Pandey 2011 (2) SCC 105 and R.K. Sabharwal vs. State of Punjab 1995 (2) SCC 745 and Hanuman Dutta Shukla and ors vs. State of UP & ors Civil Appeal No.587-588 of 2016 arising out of Special Leave to Appeal (C) No.21843-21844 of 2115 decided on 19.1.2016 in support of his submission.
40. We have very carefully considered the submissions made by the learned counsel for the parties and perused the record in question.
41. Before proceeding to decide the issue in hand, we feel it proper to deal with the various decision cited at the Bar and also other relevant decisions on the subject.
42. In the case of Indra Sawhney (supra) Hon'ble Supreme Court in paragraph 812 of the report has held as follows:-
"812. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A. little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure."
43. In Hoshiar Singh's case (supra), a requisition was sent to select candidates for appointment on 6 posts of Inspectors of Police by advertisement dated January 22, 1988. Applications were invited for the said 6 posts. Subsequent to the written examination but prior to the physical test and interview a revised request for 8 more posts was sent. The Board recommended 19 names out of which 18 persons were given appointments. Those appointments were challenged before the Punjab and Haryana High Court and it was held that appointments beyond 8 posts were illegal. On appeal this Court held that since requisition was for 8 posts, the Board was required to send its recommendation for 8 posts only. Hon'ble Supreme Court further observed that the appointment on the additional posts on the basis of such selection and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who become eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable.
44. In M. Nagraj v. Union of India (supra) it was held that equality of opportunity has different and distinct concepts. There is a conceptual distinction between a non-discrimination principle and affirmative action, under which the State is obliged to prove a level playing field to the oppressed classes. The affirmative action in that sense seeks to move beyond the concept of non-discrimination towards equalising results with respect to various groups. Both the concepts constitute 'equality and opportunity'.
45. A special provision for women made under Art. 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Art. 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. State of U.P. (1995 (5) SCC 173) thus :
". . . . . . . .The proper and correct course is to first fill up the Open Competition quota (50%) on the basis of merit; then fill up each of the social reservation quotas, i.e. S.C., S.T. and B.C.; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalized horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent. in favour of special categories, overall, may be satisfied or may not be satisfied.) (Emphasis supplied)
46. In Suraj Bhan Meena & Anr. v. State of Rajasthan & Ors. (supra) the Supreme Court held that in respect of reservations in promotions under Article 16 (4-A) and Article 16 (4-B) in respect of Scheduled Castes and Scheduled Tribes candidates, the extension of reservation would depend upon the facts of each case. In paragraphs 62 and 64 the Supreme Court observed:-
"62. The Constitution Bench went on to observe that the Constitutional equality is inherent in the rule of law. However, it's reach is limited because its primary concern is not with efficiency of the public law, but with its enforcement and application. The Constitution Bench also observed that the width of the power and the power to amend together with its limitations, would have to be found in the Constitution itself. It was held that the extension of reservation would depend on the facts of each case. In case the reservation was excessive, it would have to be struck down.
47. In Sabharwal's case (supra), it was held by the Supreme Court that "when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shows at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. For making any provision for reservation of appointments or posts in favour of any Backward Class of citizens, it is incumbent on the State Government under Article 16 (4) of the Constitution of India to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/promoted against the general seats. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the Instruction/rules providing certain percentage of reservations for the backward classes are operative the same have to be followed.
48. In the case of Shiv Prasad Vs. Government of India and others, (2008) 10 SCC 382 the Supreme Court while dealing with vertical reservation and horizontal reservation has held as follows:
"25. In Indra Sawheny (I), Justice Jeevan Reddy, J. dealt with this aspect. His Lordship observed that there are two types of reservations; (i) vertical reservations; and (ii) horizontal reservations. They must be so applied as not to exceed the percentage of reservations which is permissible under law. This can be done by "interlocking reservations". His Lordship proceeded to state:
"812.....There are two types of reservations, which may, for the sake of convenience, be referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes [under Article 16(4)] may be called vertical reservations whereas reservations in favour of physically handicapped [under clause (1) of Article 16] can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure. (emphasis supplied)
26. A similar question came up for consideration in Swati Gupta. There, the petitioner appeared in the Combined Pre-Medical Test (CPMT) held by the State. She was not selected. She challenged a notification of the State Government on the ground that the reservation was 65% which exceeded 50% and was thus violative of the constitutional guarantee under Articles 14, 16, 19 and 21 of the Constitution as also the ratio laid down in Indra Sawhney (I). The Government of U.P., however, issued another notification clarifying its stand on reservations.
27. In the amended notification, it was clarified that the reservations for the candidates belonging to other categories, such as, dependents of freedom-fighters, sons/ daughters of deceased/disabled soldiers, physically handicapped candidates, etc. would be 'horizontal' and the candidates selected in those categories would be adjusted in the categories to which they belong, i.e. either reserved category of Schedule Castes (SC), Schedule Tribes (ST), Other Backward Class (OBC) or Open Category (OC) in 'vertical' reservation and it would not violate constitutional guarantee.
28. The Court considered Indra Sawhney (I), applied it to the case on hand and held that the submission of the State was well founded and the contention of the petitioner that the reservation violated constitutional guarantee of 50% was not well-founded. The Court stated:
"3.......The vertical reservation is now 50% for general category and 50% for Scheduled Castes, Scheduled Tribes and Backward Classes. Reservation of 15% for various categories mentioned in the earlier circular which reduced the general category to 35% due to vertical reservation has now been made horizontal in the amended circular extending it to all seats. The reservation is no more in general category. The amended circular divides all the seats in CPMT into two categories one, general and other reserved. Both have been allocated 50%. Para 2 of the circular explains that candidates who are selected on merit and happen to be of the category mentioned in para 1 would be liable to be adjusted in general or reserved category depending on to which category they belong, such reservation is not contrary to what was said by this Court in Indra Sawhney. (emphasis supplied)."
49. In Special Appeal No. 1120 of 2010 (Rajeev Kumar vs. State of U.P. and others) a Division Bench of this Court following the decision of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and ors (2007) 8 SCC 785, has held that horizontal reservation is to be given category wise and if there is any shortfall, the requisite number of reserved category females candidates shall have to be taken by deleting the corresponding number of candidates from bottom of the list relating to such category. This Court has held as follows:
"The decision of the Apex Court, coupled with the conditions of advertisement, clearly demonstrate that horizontal reservation has to be given category-wise. Not only this, the manner of implementing the rule of reservation vertically and then horizontally has been very succinctly explained in paragraph 9 of the judgment in Rajesh Kumar Daria's case (supra). The relevant part of the judgment has been highlighted by us in bold, which leaves no room for doubt that only if there is any shortfall, the requisite number of reserved category females candidates shall have to be taken by deleting the corresponding number of candidates from bottom of the list relating to such category.
The rule, therefore, does not allow the respondent State Government to extend the benefit of reservation even beyond 20 percent in the respective categories, as a special reservation for women. It cannot be a tool or device to recruit candidates of the female category, even if they are less meritorious, in order to complete such horizontal reservation for which candidates are not available in other categories. There cannot be a pooling of female category candidates in excess of 20 percent against the strength of a category, as horizontal reservation in the instant case is compartmentalized.
It is, however, something different that if the female category candidates are more meritorious than the male category candidates, then they would be entitled to be accommodated in their respective categories according to their merit, but again their merit will have to be higher than the male category candidates. Women can compete with men for the balance of 80 percent seats within their category on merit but not with the aid of the logic of saturating the unfilled seats of 20 percent horizontal reservation in other categories. The reservation has to be spread evenly for the representation of female category candidates to the extent of minimum of 20 percent in each category."
50. Hon'ble Apex Court has further held 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.
51. In the case of Rajesh Kumar Daria vs. Rajasthan Public Service Commission and Ors. (2007) 8 SCC 785 the Hon'ble Supreme Court has held as follows:
"7. A provision for women made under Article 15(3), in respect of employment, is a special reservation as contrasted from the social reservation under Article 16(4). The method of implementing special reservation, which is a horizontal reservation, cutting across vertical reservations, was explained by this Court in Anil Kumar Gupta v. Stat of U.P. thus : (SCC p.185, para 18) "The proper and correct course is to first fill up the OC quota (50%) on the basis of merit; then fill up each of the social reservation quotas i.e. SC, ST and BC; the third step would be to find out how many candidates belonging to special reservations have been selected on the above basis. If the quota fixed for horizontal reservations is already satisfied - in case it is an overall horizontal reservation - no further question arises. But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. (If, however, it is a case of compartmentalised horizontal reservation, then the process of verification and adjustment/accommodation as stated above should be applied separately to each of the vertical reservations. In such a case, the reservation of fifteen per cent in favour of special categories, overall, may be satisfied or may not be satisfied.)" (emphasis supplied)
9. The second relates to the difference between the nature of vertical reservation and horizontal reservation. Social reservations in favour of SC, ST and OBC under Article 16(4) are "vertical reservations". Special reservations in favour of physically handicapped, women, etc., under Articles 16(1) or 15(3) are "horizontal reservations". Where a vertical reservation is made in favour of a Backward Class under Article 16(4), the candidates belonging to such Backward Class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, there number will not be counted against the quota reserved for respective Backward Class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said that the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under open competition category. (Vide Indra Sawhney, R.K. Sabharwal v. State of Punjab, Union of India v. Virpal Singh Chauhan and Ritesh R. Sah v. Dr. Y.L. Yamul.) But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of "Scheduled Caste women". If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation. Thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women. Let us illustrate by an example:
If 19 posts are reserved for SCs (of which the quota for women is four), 19 SC candidates shall have to be first listed in accordance with merit, from out of the successful eligible candidates. If such list of 19 candidates contains four SC woman candidates, then there is no need to disturb the list by including any further SC woman candidate. On the other hand, if the list of 19 SC candidates contains only two woman candidates, then the next two SC woman candidates in accordance with merit, will have to be included in the list and corresponding number of candidates from the bottom of such list shall have to be deleted, so as to ensure that the final 19 selected SC candidates contain four woman SC candidates. (But if the list of 19 SC candidates contains more than four woman candidates, selected on own merit, all of them will continue in the list and there is no question of deleting the excess woman candidates on the ground that "SC women" have been selected in excess of the prescribed internal quota of four.)"
52. 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) was enacted by the State of Uttar Pradesh following the judgment of this Court in Indra Sawhney Vs. Union of India (1992 Supp (3) SCC 217. 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. The 1994 Act itself was amended by the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Act, 2001 (U.P. Act No. 21 of 2001). Some provisions of this Act were challenged in this Court in a writ petition. This Court, by interim order dated 21st January, 2002 directed that no executive order, in pursuance of the aforesaid Act of 2001, shall be passed during the pendency of the writ petition. Since a large number of vacancies in public service is lying vacant, the State of Uttar Pradesh decided to restore the original position as obtained under the 1994 Act, i.e. before the amendment by the U.P. Act No. 21 of 2001. Thereafter, the Governor of Uttar Pradesh on 6th June, 2002 promulgated the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Ordinance 2002. This was subsequently replaced by the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Act, 2002 (U.P. Act No. 1 of 2002).
53. 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 1994 Act provides certain percentages of vacancies reserved for different categories of backward classes of citizens. The following percentages were prescribed:-
Scheduled Castes 21% Scheduled Tribes 2% Other Backward Classes 27%
54. In order to determine as to what would be the vacancies of reserved categories, it is necessary to have a look at the relevant provisions of the 1994 Act as amended by the Act No. 1 of 2002. Section 2(d) defines a period of 12 months commencing on 1st of July of a year as a year of recruitment for calculation of the number of vacancies. Section 3(1) gives the different percentages of vacancies, which are reserved for different categories of backward class candidates. The percentage of vacancies reserved under Section 3(1) had to be filled according to the roster mechanism provided under sub-section 5 of Section 3.Section 2(d) would tend to indicate that the State was required to determine the number of available vacancies in every year of recruitment. Once the vacancies are determined, necessary requisition would have to be sent to the Public Service Commission for initiating the process of selection
55. The 1994 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. The second proviso to Section 3 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.
56. For sake of convenience, Section 3 of U.P. Act No. 4 of 1993 is quoted hereunder:
3. Reservation of vacancies in favour of physically handicapped etc.--(1) in public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacancies at the stage of direct recruitment in favour of:
(i) physically handicapped
(ii) dependents of freedom fighters, and
(iii) ex-servicemen (2) The respective quota of the categories specified in subsection (1) shall be such as the State Government may from time to time determine by a notified order.
(3) The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments.
(4) For the purpose of subsection (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be:
Provided that at no point of time the reservation shall, in the entire strength of cadre, or service, as the case may be, exceed the quota determined for respective categories.
(5) The vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment."
57. The stand taken by the respondents is in respect of vertical reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes as provided in Section 3 of the 1994 Act. Sub Section (5) of Section 3 of the 1994 Act provides for application of reservation on the basis of roster comprising total cadre strength of the public services and posts and the roster so issued is 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, namely, persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes categories, is achieved and the operation of the roster and the running account shall thereafter come to an end and any vacancy occurring thereafter shall be filled from amongst persons belonging to the category to which the post belongs in the roster.
58. The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993 was promulgated and came in to force with effect from 30.12.1993. According to Section 3 of the 1993 Act, it was provided that there shall be reservation of 5% vacancies at the stage of direct recruitment in favour of the physically handicapped, dependents of freedom fighters and ex-servicemen. Subsection (2) of Section 3 of 1993 Act provided that the respective quota of the categories shall be such as the State Government may from time to time determine by a notified order. Further, sub-section (3) of Section 3 of 1993 Act provided the manner in which the reservation was to be applied.
59. Social reservations in favour of SC, ST and OBC under Art. 16(4) are 'vertical reservations.' Special reservations in favour of physically handicapped, women etc., under Art. 16(1) or 15(3) are 'horizontal reservations.' Where a vertical reservation is made in favour of a backward class under Art. 16(4), the candidates belonging to such backward class, may compete for non-reserved posts and if they are appointed to the non-reserved posts on their own merit, their numbers will not be counted against the quota reserved for the respective backward class. Therefore, if the number of SC candidates, who by their own merit, get selected to open competition vacancies, equals or even exceeds the percentage of posts reserved for SC candidates, it cannot be said the reservation quota for SCs has been filled. The entire reservation quota will be intact and available in addition to those selected under Open Competition category. (Vide Indira Sawhney (supra); R. K. Sabharwal v. State of Punjab (1995 (2) SCC 745); Union of India v. Virpal Singh Chauvan (1995 (6) SCC 684) and Ritesh R. Sah v. Dr. Y. L. Yamul (1996 (3) SCC 253)]. But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. Where a special reservation for women is provided within the social reservation for Scheduled Castes, the proper procedure is first to fill up the quota for Scheduled Castes in order of merit and then find out the number of candidates among them who belong to the special reservation group of 'Scheduled Castes-Women.' If the number of women in such list is equal to or more than the number of special reservation quota, then there is no need for further selection towards the special reservation quota. Only if there is any shortfall, the requisite number of Scheduled Caste women shall have to be taken by deleting the corresponding number of candidates from the bottom of the list relating to Scheduled Castes. To this extent, horizontal (special) reservation differs from vertical (social) reservation
60. Applying the ratio of the case law referred to hereinabove, to the facts of the present case, we are satisfied that the respondents had clearly erred in filling up 2721 posts out of 6628 vacancies from the candidates belonging to the category of ex-servicemen (330 posts); dependents of freedom fighters (87 posts); physically handicapped (150 posts); ST Category (6 posts); female category (1169 posts) and Diploma holders (OBC) (979 posts). The Commission has not only violated the statutory provisions as well as law settled by the Supreme Court as well as this Court in exceeding to reservation limit of 50% but also had committed illegality in following the horizontal reservation.
61. Applying the ratio of the aforesaid cases, it is relevant to indicate that in pursuance of the interim orders of this Court dated 29.4.2015 passed in various writ petitions, result of the 29 posts were withheld in different categories against total 6628 vacancies and as such, the Commission had recommended 6599 selected candidates for appointment and the recommendations were sent to the State Government vide letter dated 30.5.2005. Initially out of total 6628 vacancies, 3616 vacancies were earmarked for UR, SC-2211, ST-235, OBC-566, DFF-132, Women-1325, Ex-servicemen-331 and PH-253. Admittedly in pursuance of the aforesaid vacancies, written examination was held on 30.3.2014 and since then the entire recruitment process has been changed wherein the Director (Agriculture), Government of UP, Lucknow had issued a letter on 1.6.2015 in respect of revised requisition for the post in question. The State Government approved the segregation of vacancies in different categories on 20.8.2014 and inter-se seats of different categories have been changed as UR-2515, SC-1882, ST-201 and OBC-2030 with total 6628 vacancies.
62. It is highly important to mention here that the grounds taken by the State respondents for changing the number of vacancies of OBC category have been mentioned in para-10 of the counter affidavit dated 19.3.2016, wherein they have proceeded to mention that on account of wrongful calculation of the category-wise vacancy, the earlier requisition is required to be rectified. After making the exercise as directed by the authority it was found that the total number of general category candidate was wrongly figured out and shown as 2622 while infact the 1749 employees (979 OBC and 770 others), who were absorbed having a diploma holder passed out from the Government Agriculture School during the years 1981 to 1987 by granting relaxation by its letter dated 4.6.1998, were also required to be counted against the general category.". They have also taken a plea that at the time of determination of vacancy, the OBC persons appointed on the basis of the Agriculture Diploma holders certificate were also counted against the head of OBC category while they were not required to be counted against the OBC category. This wrongful calculation was sent showing only 566 vacancies against the OBC quota while in fact it should be 2030 as shown in the un-advertised second requisition dated 20.8.2016.
63. This much is also reflected from the record in question that from time to time the State authorities have taken different views regarding the exact number of OBC employees in the cadre in different affidavits. It para-6 of the counter affidavit of Dr. Ram Sharan Yadav, Deputy Director, Agriculture (Training) U.P. Krishi Bhawan, Lucknow filed in Writ A No.62112 of 2015 (Kamal Kumar vs. State of UP and ors), it has been stated that since upto the year 1998, there was no provisions for reservation for OBC category in the department, hence the caste-wise roster could not be prepared by the department. Relevant para-6 of the counter affidavit filed in Writ A No.62112 of 2015 is reproduced hereinafter:-
"6. That the contents of the paragraph no.9 of the writ petition are admitted to the extent that the Directorate has sent the requisition in respect of 6628 vacancies of the Commission. Earlier, the Directorate of the Agriculture had requisitioned total number of vacancies 6628 to the commission, in which 3616 posts were unreserved, 566 posts were reserved for the Other Backward Class category, 2211 posts were reserved for the Scheduled Caste category candidates and 235 posts were reserved for the Scheduled Tribe category, which was advertised by the Commission on 22.10.2013. There was a complaint by Shri Jagdamba Singh Patel, M.L.A. From Chunar, District Mirzapur to Other Backward Class Commission regarding irregularity in the reservation for the post of Other Backward Class category in its letter dated 6.11.2013 and has also requested that the selection process may be stopped. In pursuance of the complaint of the MLA, Other Backward Commission has sought explanation from the department and has also inquired regarding the correct representation of the Other Backward Class category in the above mentioned advertisement. Pursuant to the direction of the Hon'ble Backward Commission, a detailed inquiry was conducted by the department on the level of the Directorate Agriculture and it was found out that the seniority and the vacancies of Group 'C' post was manifested at the level of the Directorate and since, up to 1998, there was no provisions for the reservations for Other Backward Class category in the department, hence the caste-wise roster could not be prepared by the department and after calculating the representation of the different reserved categories and as per the District-wise calculation of the persons, working in the department, it was found that there were total 297 persons of the Scheduled Caste were working, only six persons were working under the Schedule Tribe and 1858 persons were working in Other Backward Class category and total 1636 persons of the General Category working on the said posts. Accordingly, 3796 persons were found to be working on the posts of Technical Assistants, Grade-III against the total sanctioned posts of 10559 and against the sanctioned posts of 10559, after deducting the category-wise persons working on the posts from total sanctioned posts, a revised requisition was recommended to the Government by the department and in pursuance of the letter dated 31.7.2014, the State Government vide its letter dated 20.8.2014 has sent the revised requisition to the Commission and the Commission has published the result of the selected candidates as per the revised requisition."
64. As has been observed, the provision for the reservation in appointments on the posts in favour of the reserved category candidates, which in the opinion of the State, is inadequately represented in service in the State, is very much available under Article 16 (4) of Constitution of India and for the said purpose, a reservation of SC-21%, ST-2%, and OBC-27% has been provided. No doubt the assessment of existence of the need for providing reservation and the matters incidental thereto is essentially the function of the Legislature or the Executive as the case may be and as such, it is in the realm of policies but at the same time we are also of the considered opinion that the power to frame the policies is structured by certain constitutional imperatives and limitations i.e. the identification of the existence of backward classes in the State, inadequacy of representation which enables the State to provide for reservation, with an obligation to maintain efficiency of the administration under Article 335 and as such, the assessments are required to be made on objective and rational consideration consistent with the constitutional obligations. As per the mandate given by the Apex Court there must exist two circumstances namely (a) backwardness (social and educational) and (b) inadequacy of representation. As such, to achieve equality, the quantifiable data is the imperative to determine objectivity and accordingly, provide reservation. If the State fails to identify and measure the quantifiable data with an objectivity, then the ideals for providing equality would be get defeated and frustrated. Most surprisingly the entire maneuvering has taken place in the garb of diploma holders wherein 1749 diploma holders in the department were adjusted/regularized in the year 1998. Even at the time of their regularization their heads were counted. The same is very much reflected from their regularization orders and once their heads were already counted qua to their respective categories and reserved category of persons especially OBC adequately represented, then there was no occasion for putting all the diploma holders against the open category. Initially on the basis of correct quantifiable data the vacancies were duly advertised but after the written examination in the garb of the adjustment of vacancies the entire scenario had been changed and the arguments advanced by the State authorities had in fact with oblique motive to usurp the public office/post of the general category.
65. It is well settled that the reservation under Article 16 (4) of the Constitution is being provided to the socially and educationally backward categories. If their representation in Agriculture Subordinate Service was not adequately represented, then the numerical benchmark set by the Legislature under Section 3 (1) of the U.P. Act No.4 of 1994 is to be adhered. Once the State had itself accepted in its counter affidavits that 1858 OBC persons (in its affidavit dated 11.12.2015) and 1749 OBC persons (in affidavit dated 19.3.2016) were working against the cadre strength, then at the stage of interview, the State Government and the Commission could not take a stand that all the diploma holders were liable to be adjusted against open category. The ultimate aim and object is to achieve adequate representation of OBC, SC and ST and in case in the cadre of service if they are already adequately represented and mostly they belong to OBC category, then at the stage of interview the State could not take plea that they have right to re-arrange the vacancies and as such, putting all the diploma holders in the open category at the stage of interview is unsustainable.
66. In U.P. Power Corporation Limited v. Rajesh Kumar and others (2012) 7 SCC 1, Hon'ble Apex Court culled out following principles:-
"(i) Vesting of the power by an enabling provision may be constitutionally valid and yet "exercise of power" by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure the backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335.
(ii) Article 16(4) which protects the interests of certain sections of the society has to be balanced against Article 16(1) which protects the interests of every citizen of the entire society. They should be harmonised because they are restatements of the principle of equality under Article 14.
(iii) Each post gets marked for the particular category of candidates to be appointed against it and any subsequent vacancy has to be filled by that category candidate.
(iv) The 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 the upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based.
(v) The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. The said clause is carved out of Article 16(4-A). Therefore, clause (4-A) will be governed by the two compelling reasons--"backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.
(vi) 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 timescale has to be imposed in the interest of efficiency in administration as mandated by Article 335. If the timescale 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 duration depending upon the fact situation.
(vii) If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16(4) and Article 335, then this Court will certainly set aside and strike down such legislation.
(viii) The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case.
(ix) The concepts of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data. That exercise depends on numerous factors. It is for this reason that the enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment.
(x) Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment. These are compelling reasons. They do not exist in Article 16(1). It is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment."
67. The purpose of Article 16 (4) of Constitution of India is to give due representation to the certain classes in certain posts, keeping in mind Articles 14, 16 (1) and 335 of the Constitution. Articles 14 and 16 (1) have prescribed permissive limits to affirmative action by way of reservation under Article 16 (4) of the constitution. Act No.4 of 1994 is in furtherance to achieve the purpose of Article 16 (4). However, Article 335 has been incorporated so that efficiency of administration is not jeopardized and Article 14 and 16 (1) are closely connected as they deal with individual rights of the persons. Article 16 (1) flows from Article 14. Article 16 (1) deals with fundamental right whereas Article 16 (4) is enabling provisions. Article 16 (1) and (2) guarantees equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to (5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of "backward classes of citizens" which in its opinion are not adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the backward classes to claim reservation. Article 16 (4) is not controlled by a Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union territory only for such Scheduled Castes and Scheduled Tribes, which are mentioned in the schedule appended to the Presidential Order for that particular State or Union territory.
68. We are of the considered opinion that the 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 the upper ceiling limit of 50% is not violated. Further, roster has to be post-specific and not vacancy based. The State has to form its opinion on the quantifiable data regarding adequacy of representation. Clause (4-A) of Article 16 is an enabling provision. It gives freedom to the State to provide for reservation in matters of promotion. Clause (4-A) of Article 16 applies only to SCs and STs. Therefore, clause (4-A) will be governed by the two compelling reasons--"backwardness" and "inadequacy of representation", as mentioned in Article 16(4). If the said two reasons do not exist, then the enabling provision cannot be enforced.
69. In the present matter, what we find from the record is that even at the time of regularization of diploma holders in their regularization order itself the category was mentioned and at the time of interview the State could not take such a plea that all the diploma holders in masses had to be adjusted against the open category inspite of the availability of the backwardness datas. The concept of efficiency, backwardness and inadequacy of representation are required to be identified and measured. That exercise depends on the availability of data and on numerous factors. The enabling provisions are required to be made because each competing claim seeks to achieve certain goals. How best one should optimise these conflicting claims can only be done by the administration in the context of local prevailing conditions in public employment. Article 16(4), therefore, creates a field which enables a State to provide for reservation provided there exists backwardness of a class and inadequacy of representation in employment and these are compelling reasons. They do not exist in Article 16(1) and it is only when these reasons are satisfied that a State gets the power to provide for reservation in the matter of employment. The quantifiable data is a condition precedent for providing or continuing reservation. The quantifiable data can only ascertain the inadequacy of representation of backward class.
70. In the present case, the Commission had issued an advertisement dated 22.10.2013 for filling up 6628 vacancies of Technical Assistant. In pursuance thereof, the petitioners applied and participated in the written examination held on 30.3.2014. The result of the written examination was declared on 15.9.2014 in which they were declared successful. Thereafter, the Director, Agriculture had sent the second requisition for the post in question on 31.7.2014. The State Government once again carried out the process to determine the quantifiable data of different categories of employees working in the cadre of Agriculture Subordinate Services and sent the third requisition on 20.8.2014. After declaration of the result, the Commission issued the Office Memorandum dated 12.10.2014 notifying the revised requisition on 20.8.2014 and fixed the dates of interview. Consequently, the inter se number of seats of different categories i.e. UR-2515, SC-1882 (28%), ST-201 (3%) and OBC-2030 (30%), has been changed in violation of Section 3 (1) of the Act 1994 as well as the constitutional mandate provided under Article 16 (4B) of the Constitution of India. The Commission declared the impugned result on 21.5.2015 wherein 88% candidates belonging to reserved categories have been shown to be selected, whereas only 12% candidates under open category have been selected.
71. In public services, the post shall be reserved at the stage of direct recruitment and the reservation is provided for following percentage of vacancies, to which recruitment are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to SC, ST and OBC of citizens- (a) namely in the case of SC - 21%; (b) in the case of ST - 2% and (c) in the case of OBC- 21%, and the reservation of vacancy for all categories of persons shall not exceed in any year of recruitment 50% of the total vacancies of that year, as also 50% of the cadre strength of service to which the recruitment is to be made. In the impugned result, in contravention to Section 3 (1) of 1994 Act, 33% reservation for SC and 3.54% for ST, instead of SC-21% and ST-2%, has been provided. The percentage of reservation to SC/ST and OBC crossed the upper limit of 50%.
72. Rule 15 (3) of Service Rules 1993 provides for calling the successful candidates keeping in mind the vacancy of the reserved categories required under Rule 6 after the declaration of result of written examination and for the adequate representation of each category, three candidates qua vacancies are required to be invited for the interview. Thus, on the total advertised number of seats for open category i.e. 3616 x 3 = 10848 candidates were eligible under Rule 15 (3) for interview test. However, by decreasing the number of seats vide letter dated 20.8.2014 i.e. 2515x3 = 7545 candidates were invited, thus, 10848 - 7545 = 3303 candidates were illegally deprived to appear in the interview test. However, in the Other Backward Class category, only 566 vacancies were advertised against which only 1698 candidates would be eligible to appear in the interview. However by illegally increasing the numbers of vacancies to 2030, 6090 candidates had been invited for the interview. Thus, in the Other Backward Class category, 6090 - 1698 = 4392 more candidates were called for the interview, even though they were not eligible as per advertisement dated 22.10.2013. Thus, by changing the number of vacancies for different categories amounts to violation of Rule 15 (3) of Rules 1993 during the pendency of the advertisement and thus, depriving of 3303 general category candidates, even to appear in the interview and allowing 4392 more candidates of OBC in the zone of consideration for the selection, amounts to changing the rule of the game during the process of selection. In catena of judgements the Supreme Court has deprecated the practice of changing the guidelines, procedure or standard once process of selection has commenced. In Madan Mohan Sharma and another vs. State of Rajasthan and ors (2008) 3 SCC 724 the Supreme Court held that changes brought out in the rules during the pendency of the advertisement could not affect the said eligibility conditions, and if changed policy was to be given effect, the proper course was to recall the advertisement and issue a fresh one.
73. In view of the aforesaid circumstances, this Court is of the view that after declaration of the result of written examination, the entire selection is vitiated/ tainted and as such, the same cannot sustain. In case the Court comes to the conclusion that the selection is tainted, then there is no necessity to provide individual notices and as such, even the entire selection can be cancelled as per the law laid down by Hon'ble Apex Court in Union of India v. O. Chakradhar, AIR 2002 SC 1119. Moreover, even on behalf of some of the selected candidates, Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare, Om Prakash Tripathi and Shri Anoop Trivedi has also been heard. In the aforesaid facts and circumstances, we are of the view that some of the selected candidates have also been heard in the matter and as such, no individual notice is required to be issued in the matter.
74. Admittedly the written examination for the post in question was already held on 30.3.2014 and the result of the written examination was declared on 15.9.2014 in which the petitioners were shown to be qualified. Subsequently the Director, Agriculture had sent the second requisition for the post in question on 31.7.2014 and again the State Government carried out the process to determine the quantifiable data of different categories of employees working in the cadre of Agriculture Subordinate Services and sent the third requisition on 20.8.2014. We are of the considered opinion that there is no infirmity in the declaration of the result of written examination, as such the result of written examination is upheld but subsequent to it the entire selection proceeding is vitiated and as such, the second requisition dated 31.7.2014; third requisition dated 20.8.2014 and the impugned result cannot sustain in the eye of law and are accordingly set aside.
75. All the writ petitions/special appeals are allowed and a direction is issued to the Principal Secretary, Government of UP to send afresh requisition to the Commission on the basis of quantifiable data, existing strength of cadre as well as actual persons working in different categories forthwith so that interview may be ensured at the earlier. The entire exercise be completed within four months from the date of receipt of certified copy of the judgment. The State Government/Commission is also directed to conduct all the future selections on the basis of quantifiable data, existing strength of cadre as well as actual persons working in different categories. The Special Appeal Defective No.283 of 2016 filed by State of UP is disposed of accordingly.
Order Date :- 10.2.2017 RKP