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6. Sri Ashok Khare, Senior Advocate appearing on behalf of the petitioners submitted that the reasoning given in the impugned order dated 25.4.2011 for not treating the 21 unfilled vacancies of OBC of the General Recruitment 2006 as unfilled backlog vacancies is totally illogical and contrary to Section 3 (2) of the Act. In the submission of the learned counsel for the petitioners, unfilled vacancies are those which were advertised, the entire process of selection was completed but despite being subjected to selection process, the vacancy remained unfilled. A vacancy could remain unfilled for several reasons. It could be when suitable candidates are not available or on account of non joining of the selected candidates. In either of the two eventualities, the vacancy remains an 'unfilled vacancy'. Such a vacancy can only be filled under a special recruitment drive as contemplated by Section 3(2). In this regard, reliance has been placed on the decision of the Supreme Court in State of Uttar Pradesh and others Vs. Sangam Nath Pandey and others2. It is submitted that these 21 vacancies ought to have been included in the Special Recruitment Drive : 2007 in which the petitioners participated. It is further submitted that since the petitioners are just below the selected candidates in the merit list and, therefore, they are entitled to be offered appointment against these posts. It is urged that these 21 posts were wrongly included in the advertisement issued in the year 2011. These vacancies should be excluded from the advertisement dated 26.2.2011 and should be filled up by offering appointment to the petitioners.

".....the backlog vacancies with reference to sub-section (2) of Section 3 of U.P. Act 4 of 1994 as amended by U.P. Act 1 of 2002 necessarily mean those vacancies within the reserved category which were subject-matter of an earlier advertisement but remained unfilled because of non- availability of suitable candidates within the reserved category after selection. It is only in respect of such vacancies that the procedure qua backlog vacancies can be adopted. We may further clarify that any vacancy in the reserved category (however old it may be), if it had not been advertised earlier and was not a part of an earlier process of selection which was completed, the same cannot be termed to be a backlog vacancy."

13. The Supreme Court ultimately concluded by laying down as under:-

"33. A harmonious construction of sections 2(d), 3(2) and 3(5) would lead to the conclusion, as stated by the Division Bench, that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject-matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy.
"26. That the clear picture which emerges from the aforesaid discussion is that when the selection process of Ist Advertisement dated 19.04.2006 was going on and before it gets completed by 10.02.2008 the selection process of Backlog vacancies through IInd Advertisement started w.e.f. 20.08.2007. Before the publication of IInd Advertisement dated 20.08.2007 all the existing Backlog vacancies upto the month of July, 2007 was included in this Advertisement as per Annexure No.1 of this counter affidavit i.e. (55 OBC + 15 ST). The selection process of Ist Advertisement dated 19.04.2006 was not completed by the time, when the IInd Advertisement for Backlog selection dated 20.08.2007 was published. Thus there was no question or occasion to anticipate and include the 21 alleged vacancies due to non joining of 21 selected OBC candidates of Ist Advertisement (for 1021 posts) prior to completion of its selection process i.e. on 10.02.2008 (the last date for the joining of the selected candidates)."