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3) have been found to be working, 65 being, thus, the clear vacancy. For the calculation of backlog, the General Administration Department has adopted a formula by taking the reserved percentage of a particular reserved category of twice the number of the unreserved category persons working, after adjusting the number of persons working in that reserved category. For example, 18 per cent reservation is prescribed under the Act for the Extremely Backward Classes. The total number of persons of unreserved category, found working, was 46. For the purpose of calculation of backlog, the Department multiplied 46 by 2, thus, producing 92. 18 per cent of 92, coming to 16.56 (rounding off 16), according to the Department, would have been the minimum Patna High Court CWJC No.9084 of 2017 dt.02-04-2018 number of candidates belonging to Most Backward Classes, who ought to have been there in the cadre. Since 3, Most Backward Classes category, were already working, the Department worked out the backlog to be 13. Apparently, the determination of backlog has not been on the basis of vacancies having remained unfilled in a previous completed selection process in a particular recruitment year(s).

43. My view finds support from Supreme Court's decision, in the case of State of Uttar Pradesh and Others v. Sangam Nath Pandey and Others, reported in (2011) 2 SCC 105. The provisions under the Uttar Pradesh Public Service (Reservation of Scheduled Castes, Scheduled Tribes and other Backward Class) Act, 1994, were under consideration before the Supreme Court and a question had arisen in respect of computation of backlog vacancies. Upon consideration of the provisions under the Uttar Pradesh Public Service (Reservation of Scheduled Castes, Scheduled Tribes and other Backward Class) Act, 1994, the Supreme Court held, in paragraph 33, that only those vacancies could 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. In clear terms, the Supreme Court held that it is only in respect of such vacancies that the Patna High Court CWJC No.9084 of 2017 dt.02-04-2018 procedure qua backlog vacancies can be adopted and any vacancy not subjected to complete process of selection, even though vacant, cannot be treated as backlog vacancy. Paragraph 33 of the said decision, in the case of Sangam Nath Pandey (supra), is relevant for the present and is being reproduced hereinbelow:-

"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."
(ii) In view of clear language used in Section 4 of the 1991 Act, only those vacancies can be declared backlog vacancies within the reserved category, which, though, were subject matter of a previous advertisement, but remained unfilled because of non-

availability of suitable candidates, within the reserved category, after selection. No vacancy, which has not been subjected to a complete process of selection could be treated as backlog vacancy, in view of the law laid down by the Supreme Court, in the case of Sagam Nath Pandey (supra). (See, paragraph 30)