Prof. Amar Nath vs State Of U.P. And 3 Others
2023 Latest Caselaw 16499 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Neutral Citation No. - 2023:AHC:115752
 
Court No. - 38
 

 
Case :- WRIT - A No. - 5750 of 2023
 

 
Petitioner :- Prof. Amar Nath
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mamta
 
Counsel for Respondent :- C.S.C.,M.N. Singh
 

 
Hon'ble Saurabh Srivastava,J.

1. Heard Ms. Jigyasa Singh, learned counsel holding brief of Ms. Mamta, learned counsel for the petitioner, Sri Satyendra Kumar Tripathi, learned Standing Counsel appearing on behalf of the respondent nos.1 and 4 and Sri Fuzail Ahmad Ansari, learned counsel appearing on behalf of the respondent no.2.

2. The present petition has been filed seeking the following relief:-

"a) Issue a writ, order or direction in the nature of certiorari, calling for record to quash the Rolling Advertisement No.D-1/E-1/2023 dated 02.02.2023 in respect of Uttar Pradesh Medical Department (Ayurvedic Department) only (Annexure -1 to the writ petition)

b) Issue a writ, order or direction in the nature of mandamus, to command the Respondent no.2 to issue a fresh advertisement for the Posts Principal after considering the applied proper reservation policy accordingly in respect of the Advertisement No.D-1/E-1/2023 dated 02.02.2023 in respect of Uttar Pradesh Medical Department (Ayurvedic Department)/or decide the representation/letter of the petitioner dated 17.02.2023 (Annexure No.5 to the writ petition)."

3. It is the case of the petitioner that the cadre strength of the Principal, Government Ayurvedic Medical College is 8 in number and as such, if the notification for advertising the vacancy for 4 posts which is exclusively for unreserved category shall violate the reservation policy along with the roster which is applicable for reserving at least one post out of four posts advertised through the impugned advertisement notification, in that case, the advertisement notification dated 02.02.2023 is bad in law.

4. For substantiating the arguments as raised on behalf of the petitioner, learned counsel for the petitioner apprised the Court that the reservation may not be exceeded from 50% in any case if at all the same has been notified for the unreserved category, in the case it is 100% vacancies as notified are exclusively for unreserved category.

5. In absence of application of 100 point roster as defined under the 1994 Act1 shall be applicable which crystal clearly defines that second, fourth, sixth and eighth posts shall only be filled up by unreserved category.

6. Learned counsel for the petitioner also relied upon the judgment rendered by Hon'ble the Supreme Court in case of State of U.P. and others Vs. Sangam Nath Pandey and others connected with U.P. Public Service Commission Vs. Manoj Kumar Singh and others 2. The extract of the abovementioned judgment which is related to the instant matter wherein the fraction of reservation along with the roaster has been clarified by Hon'ble the Supreme Court is reproduced hereinbelow:-

"25. In order to determine as to what would be the backlog vacancies, it is necessary to have a look at the relevant provisions of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994 as amended by the Act No. 1 of 2002.

"2 (d) "year of recruitment" in relation to a vacancy means a period of twelve months commencing on the first of July of a year within which the process of direct recruitment against which such vacancy is initiated.

3. Amendment of Section 3 - In Section 3 of the Principal Act, -

(a) for sub-sections (1), (2) and (3) the following sub-section shall be substituted, namely :-

(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens -

(a) in the case of Scheduled Castes Twenty one percent

(b) in the case of Scheduled Tribes Two percent

(c) in the case of Other Backward Twenty seven percent Classes of citizens

Provided that the reservation under clause ) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II :

Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty percent of the total vacancies of that year as also fifty percent of the cadre strength of the services to which the recruitment is to be made.

(2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitments in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty percent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub- section (1) ;

(3) Where a vacancy reserved for the Scheduled Tribes remains unfilled even after three special recruitments made under sub- section (2), such vacancy may be filled from amongst the persons belonging to the Scheduled Castes."

(b) (i) Sub-sections (3-A),(3-B) shall be omitted;

(ii) Sub-section (4) shall be omitted;

(c) for sub-section (5), the following sub-

section shall be substituted, namely :-

"(5) The State Government shall for applying the reservation under sub-section (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reserve points and the roster so issued shall 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) is achieved and the operation of the roster and the running account shall, thereafter, come to an end, and when a vacancy arises thereafter in public service or post the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster."

A bare perusal of the above would show that the 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. It also provides for a self-contained mechanism as to how the posts shall be distributed among the different categories according to 100 point roster."

7. In the abovementioned referred judgment as relied upon by learned counsel for the petitioner, the position of vacancy in respect of reservation which has to be applicable as per the roster maintained in pursuance of the 100 point roster defined under the Act of 1994, Hon'ble the Supreme Court further clarified that the roster shall be applicable strictly in consonance with the reservation and if the same has to be properly given credence to the yearwise vacancy arising out of vacant posts created after retirement or vacated on any reason, the same has to be strictly filled up with the reservation available for each and every category and the same has been discussed in detail which is reproduced hereinbelow:-

"38. The exercise of identifying the year-wise and cadre- wise vacancies ought to have been conducted by the State prior to the issuance of the advertisement as rightly noticed by the learned single Judge. The purpose of introducing a roster system was to ensure that the percentages of reservation provided for various categories of persons is effectively and speedily achieved. This can only be done if the department concerned identifies the year-wise vacancies in the cadre. Once the vacancies are identified, it is enjoined upon the authorities to ensure that the selection procedure is completed speedily. This is necessary to avoid uncertainty to all categories of candidates.

39. General category, as well as, the reserved category candidates are likely to be adversely affected in case the vacancies are not filled within a reasonable period of time. As a result of undue delay, certain candidates will always be in the danger of becoming overage to apply for some particular posts falling in a particular year of recruitment. Unnecessary lethargy in filling up the posts would also lead to further uncertainty and chaos among the recruits with regard to their seniority, confirmation and promotions. Such a situation only gives rise to unavoidable litigation, lasting for many long years. This case epitomizes such malaise.

40. In our opinion, the State Government, in the present case, ought to have initiated the necessary selection procedure upon due verification of the posts available for the reserved categories. It was not sufficient to merely send the requisition to the Public Service Commission. It was necessary for the State to pursue the matter with the Public Service Commission for completion of the selection process. Otherwise, the very purpose of introducing the roster system and a running account would be totally defeated. We may reiterate here the observations made by this Court in the case of R.K. Sabharwal (supra). With regard to the operation of the roster system, in the aforesaid case, it was observed as follows:-

"5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts ..." are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.

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.

7. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. Jeevan Reddy, J. speaking for the majority in Indra Sawhney v. Union of India (1992 Supp (3) SCC 217) observed as under: (SCC p. 737, para 814)

"Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e. 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all Backward Classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age-barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold 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."

42. The facts narrated above would indicate is that the situation in the present case is almost as it was depicted by this Court in the case of Indra Sawhney (supra).

43. We, therefore, reiterate that it is necessary for the department to identify year-wise vacancies for the cadre. It is also necessary to fill up the posts speedily in order to avoid certain candidates being rendered ineligible as they may have become overage. It is for this reason that Section 3 has placed importance on the year of recruitment as also on the process of selection.

44. In our opinion, the authorities have been rather casual in their approach in implementing the reservation policy, in letter and spirit. We are, however, conscious of the fact that the 367 posts lying vacant for a number of years are meant only for the reserved categories. They have been calculated on the basis of the percentages reserved for various categories. In segregation of the aforesaid posts, none of the unreserved categories would be deprived of any posts which ought legitimately to have fallen to their share. Therefore, we are of the considered opinion that the interest of justice, in the peculiar facts of this case, demands that the course adopted by the State Government in segregating 367 posts for special recruitment ought not to be disturbed. "

8. Per contra, learned Standing Counsel as well as learned counsel appearing on behalf of the Commission vehemently opposed the prayer as made in the petition and supported the advertisement notification issued for recruitment of four vacant posts for the post of Principal, Government Ayurvedic Medical College which has been strictly in accordance with the reservation available for the reserved category and in consonance with the 100 point roster which is mandatory to be applied at the time of filling up the cadre strength which is only 8 in numbers.

9. The vital aspect which has been mentioned at the time of hearing of the matter that the total cadre strength of the Principal, Government Ayurvedic Medical College is only 8 wherein as per the reserved category for Scheduled Caste that is maximum limit to 21%, it comes to 1.68 posts which is strictly defined under the Act of 1994 as mentioned under Section 3(1) which is also quoted hereinbelow:-

"3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. - [(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitment's are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, -

(a)

in the case of Scheduled Castes

Twenty-one per cent;

(b)

in the case of Scheduled Tribes

Two per cent;

(c)

in case of Other Backward Classes of citizens

Twenty-seven per cent:

Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II:

Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made."

10. While substantiating the stand taken up by learned counsel appearing on behalf of the Commission, he also mentioned Section 3(5) of the 1994 Act which clearly says that the State Government shall for applying the reservation under sub-section (1) of Section 3 by a notified order, issue a roster, which shall be continuously applied till it is exhausted.

11. It is also the admitted fact and position which is to be taken into consideration that if the fraction comes to 1.68, it will be only one post shall be available for reserved category.

12. Learned Standing Counsel came up with specific instructions which are taken on record that one post of the reserved category has already been occupied wherein a regular incumbent is rendering his services as Principal, Government Ayurvedic Medical College and as such, the notification for selection of four posts for unreserved category for the same post is justified in nature and the same is in the strict compliance of the 1994 Act.

13. The entire stand which has been taken up by the respondent nos.2 is also based on the verdicts pronounced by Hon'ble the Supreme Court in the case of M.R. Balaji Vs. The State of Mysore 3 and R.K. Sabharwal and others Vs. State of Punjab and others 4.

14. After giving due consideration to the submissions extended by learned counsels for parties and giving regard to the judgments cited by both the counsels, the instant matter has to be testified only on two grounds:-

(i) Whether the number of posts as notified, is in accordance to the reservation available for reserved category?

(ii) The total cadre strength of the posts of Principal has been filled up, notified under the advertisement notification which is under challenged in the instant petition is fulfilling the roster or not?

15. The ratio of the judgment as relied upon by learned counsel for the petitioner in case of the State of U.P. Vs. Sangam Nath Pandey connected with U.P. Public Service Commission Vs. Manoj Kumar Singh (supra) clearly defines that the posts which are meant for the reserved category, would be offered only to the reserved category so long as the reserved roster point are not occupied by reserved category, but at the same time, there is hardly any whisper with regard to exceeding the limit of the reservation and the case as mentioned by learned counsel for the petitioner with regard to reserving two posts out of total cadre strength of the Principal, Government Ayurvedic Medical College which is 8 in number then in that case, the reservation shall available for reserved category i.e. specifically for the Scheduled Caste to the tune of 21% shall exceed to 25%, moreover, the roster as mentioned by learned counsel for the petitioner which is 100 point roster and the bifurcation of the posts available for the reserved category as well as for the unreserved category shall be applicable for the 8 posts which is total cadre strength of the post of the Principal, Government Ayurvedic Medical College has to be recalculated in terms of 100 point roster, and as such, the entire exercise as initiated by the U.P. Public Service Commission in consultaion with the State Government does not reflect that the maximum capping limit of 21% for the post which is reserved for the Scheduled Caste, has ever been disturbed.

16. The ratio of the judgment as referred by learned counsel for the petitioner has already been given credence and the action of the respondents is strictly in accordance with the same.

17. The two judgments which have been relied upon by learned counsel appearing on behalf of the respondent no.2. the case of R.K. Sabharwal (supra) has already been discussed in the judgment of Sangam Nath Pandey (supra) as relied upon by learned counsel for the petitioner and the same is already discussed in the preceding paragraphs and action of the respondents is strictly in accordance with the same which needs not to be reiterated again. After having the judgment passed in M.R. Balaji (supra) rendered by Hon'ble the Supreme Court which is solely based on capping limit of reservation which is not in dispute at the time of challenging the advertisement notification in the instant petition.

18. The preliminary ground for challenging the order which impugned the present petition is the action of the respondents in shape of notifying the four posts for the post of Principal, Government Ayurvedic Medical College exclusively for unreserved category shall exceed the maximum capping of 50% of reservation in favour of the unreserved category and the same is contrary to the guiding principles laid down in the case of Indra Sawhney Vs. Union of India5.

19. Answering the abovementioned framed questions, it is crystal clear that the reservation applicable for reserved category especially for the Scheduled Caste which is 21% which comes down in fraction to 1.68 and as such, one post out of 8 has to be kept reserved for reserved category candidate belongs to the Scheduled Caste and as per the factual narration made by learned Standing Counsel, one Sri Suresh Chandra is already rendering his services as Principal, Government Ayurvedic Medical College and as such, there is a strict compliance of the reservation mandated under 21%.

20. Sofar as the application of roster is concerned, the same is also applied by way of de-categorization of the posts in reserved category, unreserved category and other backward classes. It is the admitted fact which has been narrated in the petition as well as apprised through the instructions by learned Standing Counsel that one post has been already occupied by reserved category under Scheduled Caste and two posts under the Other Backward Classes are also occupied and as such, the notification issued for the four posts for unreserved category, cannot be termed as illegal.

21. In view of the aforementioned observations, the writ petition stands dismissed.

Order Date :- 24.5.2023

Vivek Kr.

(Saurabh Srivastava, J.)