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14. The writ petitions are filed by various categories of candidates and challenge the reservation provided for in the advertisement from different angles. C.W.J.C. No.8932 of 2020 from which arise L.P.A. Nos. 604, 622, 890 and 1007 of 2023 Patna High Court L.P.A No.604 of 2023 dt. 18-04-2024 challenge the advertisement dated 21.09.2020 and seek re- working of the vacancies and the alleged breach of 50% limit in reservations. The backlog vacancies; according to the petitioners, who are guest teachers in the various colleges and from the unreserved category, has not been correctly determined. C.W.J.C. No. 5853 of 2021 from which arise L.P.A. No. 832 of 2023 and C.W.J.C. No. 226 of 2023 from which arise L.P.A. No. 836 of 2023 have been filed by persons eligible to apply under the horizontal reservation of 2% set apart for grandchildren of freedom fighters; the former in the subject of Home Science and the latter in the subject of Psychology. C.W.J.C. No. 1704 of 2022 from which arises L.P.A. No. 833 of 2023 ventilates the claims of persons with disabilities; again a horizontal reservation the sole petitioner therein being concerned with the reservation of post in Environmental Science. C.W.J.C. No. 433 of 2021 from which arises L.P.A. No. 834 of 2023 challenge the advertisement and the prescription of reservation as being, in violation of the reservation policy of the State. The 10 petitioners therein seek selection afresh to the existing and future vacancies providing for reservations in accordance with the Reservation Act, 1991 including the 10% eligibility for Economically Weaker Sections (EWS). C.W.J.C. Patna High Court L.P.A No.604 of 2023 dt. 18-04-2024 No. 817 of 2020 from which arises L.P.A. 835 of 2023 is filed by 5 petitioners from the reserved category who are continuing as guest lecturers. It is alleged in the said writ petition that the roster points have not been properly determined, the age relaxation for OBC, MBC and SC cannot be common and has to be different and claim inclusion of left out vacancies by identifying the vacancies on the basis of the student strength.

15. The learned Single Judge, at the outset, noticed that out of a total 4638 posts of Assistant Professors, only 1223 have been made available to the general/open category, which has given rise to the present litigation; alleging breach of the 50% limit. The argument of the Commission was that each University was treated as a unit and the roster points were applied at the University level for each subject. The list of posts is provided to the Commission as available in each category for the various subjects from the different Universities. The backlog vacancies were also identified university-wise by the Universities and the roster point was allocated treating each University as a separate unit. The earlier selection was in the year 2014 when the State Government had passed a resolution determining 75% of the total vacancies requisitioned by the Universities to be filled up subject wise as current vacancies and Patna High Court L.P.A No.604 of 2023 dt. 18-04-2024 25% kept pending as backlog for the purpose of filling up later.

16. The learned Single Judge found that the recruitment agency had to separately earmark backlog vacancies as a separate class and the fresh vacancies shown separately. Reckoning the resolution of the year 2014, the impugned judgment found that 25% vacancies set apart for filling up later and those earlier not filled up from the reserved category have to be included to determine the backlog vacancies for the present year. It was found that in determining the backlog vacancies, it was essential for the respondents to first identify the Assistant Professors appointed on the basis of merit, both in the general category and also from the reserved category. Only then could be identified; the exact backlog vacancies of the reservation category. Mere identification of existing Assistant Professors belonging to the reserved category would not be a correct assessment of backlog vacancies. It was also observed that the respondents were unable to explain how the Universities were treated as a separate selection unit when the University Act provides for conducting a selection for all the Universities by a common advertisement and a common examination. All posts existing in the various Universities were directed to be counted together as one unit for the purpose of application of roster. The Patna High Court L.P.A No.604 of 2023 dt. 18-04-2024 learned Single Judge thus directed re-working of the reservation by specifically identifying the backlog vacancies and also taking the entire number of vacancies as an appointment to a single unit for the purpose of determining the roster points. The selections already made and concluded were directed to be adjusted either in the backlog vacancies or in the roster points of the instant selection year, so as to not disturb them. If additional candidates are to be called, based on the clubbing of vacancies in all the Universities, then the additional candidates should be called for and interviewed before the appointments are carried out.

34. We extract hereunder paragraph 4 from R.K. Sabharwal (supra):-

"4. 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 shown at the reserve points are to Patna High Court L.P.A No.604 of 2023 dt. 18-04-2024 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-reserve 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. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation 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. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. 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 Patna High Court L.P.A No.604 of 2023 dt. 18-04-2024 instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same."