Judgment Aftab Alam, J. An advertisement issued by the Bihar Public Service Commission for appointment to the two posts of Principal in the Government Girls College, Gardanibagh and the Government Girls College, Gulzarbagh comes under challenge in both the writ petitions. By the impugned advertisement, the two posts of Principal are reserved, one in favour of the extremely backward class and the other for the scheduled tribes. The petitioners in the two writ petitions, both of whom do not belong to. .any reserved category, challenge, on common grounds, the action of the respondent authorities in reserving both the posts. Hence, for the sake of convenience, the two writ petitions have been heard together and are being disposed of by this common judgment and order. 2. It is not necessary here to go into the details of the career histories of the two petitioners and the purpose of this judgment would be served by beginning the narration of the material facts from the stage when on the superannuation of the Principal of the Government Girls College, Gardanibagh, Dr. Shamim Sadaqua (petitioner in CWJC No. 3235/1994) was made Incharge Principal of the Gardanibagh college vide notification, dated 30-12-1991. Smt. Minati Mitra (petitioner in CWJC No. 254/1994) then came to this Court in CWJC No. 4717/1992 challenging the notification, dated 30-12-1991, appointing Dr. Sadaqua as the Incharge Principal. The aforesaid writ petition was disposed of by a Bench of this Court by order, dated 2.2.1993 in the following terms: "Accordingly, we dispose of this application by giving the following directions. The Commissioner and Secretary, Human Resources Development Department, under whom the collage comes, shall write necessary letter to the Bihar Public Service Commission which is stated to be the competent authority for recommendation of names along with the relevant papers and materials. The Bihar Public Service Commission shall recommend the names within six weeks from the date of receipt of that letter after complying with all the formalities. In any view of the matter, after 15th of April, 1993, there' shall not be any "Incharge" Principal unless permitted by the Court. The Bihar Public Service Commission shall recommend the names within six weeks from the date of receipt of that letter after complying with all the formalities. In any view of the matter, after 15th of April, 1993, there' shall not be any "Incharge" Principal unless permitted by the Court. All persons who are otherwise qualified shall be entitled to be considered for appointment." It appears that following the aforesaid direction of this Court the State Government made requisition on the Public Service Commission for recommending the names for appointment to the two posts of Principal in the Government Girls College, Gulzarbagh, and the Government Girls College, Gardanibagh. The Commission on 23.3.1993 issued advertisement no. 1/93 inviting applications for the two posts both of which, however, were put in the reserved category, one in favour of the extremely backward class and the other for the scheduled tribes. In other words, a candidate from the general category was totally excluded from consideration for appointment to any of the two posts. 3. At this stage Smt. Minati Mitra again came to this Court in CWJC No. 3324/1993 challenging advertisement no. 1/93 in so far as it reserved both the posts of Principal in the two Government Girls Colleges. The same challenge to the advertisement was made by one Smt. Dharmar Choudhary in CWJC No. 3228/1992. In the counter affidavit filed on behalf of the Commission in CWJC No. 3324/1993, it was stated that no recommendation was made on the basis of advertisel1 lent no. 1/93, dated 23-3-1993. In view of this statement by the Commission, this Court held that the aforesaid two writ petitions had become infructuous and disposed them of by order dated 12-10-1993, in the following terms: "However, it appears that the Commission upon examination of all the applications in this regard, has found that no body is suitable for such posts and, accordingly, has referred the matter back to the State Government. In that view of the matter, the original requisition to that effect has become infructuous. In that view of the matter, the original requisition to that effect has become infructuous. Accordingly, we direct the State Government to make a fresh requisition in respect of these two posts by 31-10-1993 and send the same along with all materials and papers to the B.P.S.C. We further direct that while making fresh requisition the State Government shall take into consideration whether such post or both of them should be reserved or it should be from the general category or not. Let it be recorded that for the aforesaid reasons we have not gone into the merits of the case. If any fresh requisition is made, it shall be open to the persons concerned to challenge the same or challenge any selection made on the basis of the same." It was following this order that the present advertisement no. 39/93 was issued by the Commission in which, once again, the two posts were reserved, one for the extremely backward class and the other for the scheduled tribes. At this stage, Dr. Shamim Sadaqua came to this Court in CWJC No. 3235/1994 challenging the advertisement on two counts. According' to her, the two posts of Principal in the two Government Girls Colleges were required to be filled up by promotion on the basis of seniority and claiming herself to be the seniormost teacher, she prayed for an appropriate direction to the concerned authorities to appoint her to one of the posts. She further assailed the advertisement on the ground that it put both the posts under reservation and thereby totally excluded a general category candidate from consideration for appointment. 4. Before proceeding further with this narration of material facts it may be noted that in course of hearing nothing was brought to our notice to sustain the plea that the posts of Principal in the two colleges were required to be filled up by promotion on the basis of seniority alone. The challenge to the advertisement on this ground is, therefore, to be rejected without any further discussion. Thus, what remains to be examined in' this judgment is the validity of the advertisement in 'putting both the available posts under reservation. 5. The challenge to the advertisement on this ground is, therefore, to be rejected without any further discussion. Thus, what remains to be examined in' this judgment is the validity of the advertisement in 'putting both the available posts under reservation. 5. Coming back to the facts of the case, this writ petition was admitted for hearing on 19-4-1994 with the following interim direction : "Pendency of this writ application shall not stand in the way of the respondents to process the applications for appointment pursuant to the advertisement as contained in Annexure 1 to the writ petition but no final appointment in the post shall be made till further orders.” During the pendency of this writ petition, the Commission by its letter, dated 182-1994 (copy at Annexure 'J' to the intervention petition) recommended the name of Smt. Danshilta Hembrom for appointment to the post of Principal, reserved for a candidate of the scheduled tribes. As regards the other post, reserved in favour of the extremely backward class, the Commission in its aforesaid letter stated that no suitable candidate was available. 6. Following the Commission's recommendation a proposal to appoint Smt. Hembrom to the post of Principal in the Government Girls College, Gardanibagh, was approved by the cabinet in its meeting, dated 9-8-1994 (see Annexure K to the intervention petition). A notification was thereafter issued on 23-8-1994 appointing Smt. Hembrorn to the aforesaid post. In this notification it was stated that the appointment was being made in pursuance of the directions given by this Court in CWJC No. 3228/1992 and 3324/1993 and it would be subject to the final result of CWJC No. 3235/1994 (one of the two writ petitions in hand). Copy of this notification is at Annexure 'L' to the intervention petition. On the basis of this notification, Smt. Hembrom claimed• to have assumed charge of the Principal's office on 24-8-1994. The issuance of the appointment notification was apparently in conflict with the interim directions given in this case by order dated 194-1994. Accordingly, petitions were filed in this case on 16-9-1994 on behalf of the State and on 20-9-1994 on behalf of Smt. Hembrom for vacating/modifying the interim directions. A petition was also filed by Smt. Hembrom to be added as an intervenor respondent in this case. Dr. Accordingly, petitions were filed in this case on 16-9-1994 on behalf of the State and on 20-9-1994 on behalf of Smt. Hembrom for vacating/modifying the interim directions. A petition was also filed by Smt. Hembrom to be added as an intervenor respondent in this case. Dr. Sadaqua, the petitioner in CWJC No. 3235/1994, on the other hand, appears to have filed a contempt petition alleging disobedience of this Court's interim directions as contained in the order dated 19-4-1995. The result of all this appears to be that the appointment of Smt. Hembrom to the post of Principal of the Gardanibagh College has been kept in abeyance. 7. Having stated how the controversy developed to its present stage it would be also useful to briefly note a few facts which are not in dispute. 8. The Girls Colleges at Gardanibagh and Gulzarbagh are Government Colleges. There is no third college of this kind. In other words there are only two posts of Principal, one in each college. It is also an admitted position that all the teaching posts including that of the Principal in these two colleges are ex-cadre posts. Initially the posts of Lecturer and Principal in the two colleges were in the Bihar Education Service Class II and Class I respectively. However, in order to give them the benefit of the U.G.C. scale, these posts were declared ex-cadre from the date of their inception by a Government notification. The posts of Principal in the two colleges are identical in all matters relating to conditions of service including the mode of recruitment, the minimum qualifications required for appointment and such other matters. It is also open to the Government to transfer the Principal of one college to the other college. 9. In the background of these facts, this Court is called upon to consider the question whether both the posts can be subjected to reservation simultaneously as was done in the impugned advertisement. 10. Mr. Rajendra Pd. Singh, learned counsel appearing on behalf of the petitioner in CWJC No. 3235/1994 and Mr. R.N. Mukhopadhya, learned counsel appearing on behalf of the petitioner in CWJC No. 254/1994 assailed, on more or less common grounds, the action of the respondent authorities in subjecting to reservation both the posts of Principal simultaneously. 11. 10. Mr. Rajendra Pd. Singh, learned counsel appearing on behalf of the petitioner in CWJC No. 3235/1994 and Mr. R.N. Mukhopadhya, learned counsel appearing on behalf of the petitioner in CWJC No. 254/1994 assailed, on more or less common grounds, the action of the respondent authorities in subjecting to reservation both the posts of Principal simultaneously. 11. It was first argued that the post of Principal in each of the two colleges was an independent post which, admittedly did not belong to any cadre; it was, therefore a single post in itself, not amenable to reservation. Counsel submitted that it was not open to the authorities to put the two posts together in one group for the purpose of reservation. I am unable to appreciate this submission. No legal, or constitutional, bar was brought to our notice which would prohibit two similar or identical posts being grouped together for the purpose of reservation. As indicated above, the• two posts are identical not only in the scale of pay but in all matters relating to conditions of service, including the mode of recruitment and it is also open to the employer, the Government, to transfer a person from one post to the other. In these circumstances, I fail to see any legal objection in grouping the two posts together for the purpose of reservation. 12. Learned counsel next submitted that the Principal's post being ex-cadre it could not be subjected to reservation .in terms of Article 16 (4) of the Constitution. The submission was based on the premise that Article 16 (4) of the Constitution did not permit reservation of ex-cadre posts and reliance in this regard was placed on Rangachari's case, AIR 1962 SC 36 (para 24). I am unable to read this decision as an authority laying down that all ex-cadre posts were totally and completely beyond the pale of reservation. In my opinion, the observations made in that judgment are to be appreciated in the factual background of the case in which they were made. In that case the dispute related to a post within the cadre, which has to be filled up by promotion on the basis of selection. In my opinion, the observations made in that judgment are to be appreciated in the factual background of the case in which they were made. In that case the dispute related to a post within the cadre, which has to be filled up by promotion on the basis of selection. The Madras High Court where the writ petition was originally filed took the view that 'posts' in the context of Art. 16 (4) of the Constitution must necessarily mean posts outside the service and that in fact was the sole basis of the decision of the High Court. The High Court held that Article 16 (4) justified reservation in ex-cadre posts only and came to the conclusion that the impugned circulars which authorised reservation of posts falling inside civil services were not covered by Article 16 (4) of the Constitution. Since they were not covered by Article 16 (4), they clearly contravened Article 16 (1) and (2) of the Constitution and were, therefore, liable to be struck down. Correcting this view the Supreme Court, in the aforesaid judgment, held that reservation under, Article 16 (4) could also be made in respect' of posts within the service, that is to say, cadre posts. The observations made in para 24 .of the judgment are to be appreciated bearing in mind the aforesaid factual context of the case and I am unable to agree with the petitioners' counsels when they tried to pull out from this judgment a proposition that ex-cadre posts were not amenable to reservation at all. 13. It was then submitted that the impugned advertisement was in any event bad as by reserving both the available posts simultaneously it violated the rule that reservation should not exceed 50 percent. 14. The counter affidavit filed in this case on behalf of the State does 'not, properly deal with this aspect of the matter; but in the intervention petition filed' on behalf of Smt. Hembrom (vide para 27) an explanation is sought to be given that it was the application of the roster points that had resulted in reservation of both the available posts. It is stated that earlier both the posts of Principal were filled up by general category candidates and when the present vacancies arose, roster point nos. 3 and 4 (extremely backward class and the scheduled tribes respectively, were made applicable to them. It is stated that earlier both the posts of Principal were filled up by general category candidates and when the present vacancies arose, roster point nos. 3 and 4 (extremely backward class and the scheduled tribes respectively, were made applicable to them. It may be noted at this stage that the roster to which reference is being made by the intervenor was issued with the circular letter dated 11th March, 1993 from the Commissioner-cum-Secretary, Personnel & Admn. Reforms Department of the Government. In this roster the points are assigned in the following manner: (1) un-reserved, (2) scheduled castes, (3) extremely backward classes, (4) scheduled tribes, (5) un-reserved, (6) backward class, (7) un-reserved, (8) scheduled tribes and so on and so forth. It is not clear from the averments made in the intervention petition as to when the first' two roster points were made applicable to the two posts and why on this occasion the roster started from point no. 3? 15. Thus on the one hand the advertisement is assailed on the ground that it makes 100% reservation and on the other hand it is justified on the plea of application of roster points. Hence, the question that arises for consideration in this case is whether any departure from the rule that reservation should not exceed 50% can be justified on application of roster points? In other words is it permissible to apply roster points in a manner so as the extent of reservation exceeds the limit of 50% or, as in this case, goes upto 100%. 16. It is to be noted that in the case of Dr. Chakaradhar Paswan v. State of Bihar, 1988 Vol., 2, S.C.C. 214, the State had sought to defend the reservation of the post of Deputy Director (Homoeopathic) in the Directorate of Indigenous Medicines in the Health Department all the plea that the post had fallen against the roster point indicating reservation. In that case, the Supreme Court held that the three posts of Deputy Director, one each for Homoeopathic, Unani and Ayurvedic belonged to three different disciplines and were, therefore, single posts. Being single posts these were not amenable to reservation inasmuch as reservation of a single post would tentamount to 100% reservation. For that reason, amongst others, 'the Supreme Court rejected the State's plea justifying reservation of the post of Director (Homoeopathic) on application of roster point. Being single posts these were not amenable to reservation inasmuch as reservation of a single post would tentamount to 100% reservation. For that reason, amongst others, 'the Supreme Court rejected the State's plea justifying reservation of the post of Director (Homoeopathic) on application of roster point. It can, however, be said that in Dr. Paswan's case, the Supreme Court was dealing with a case of reservation of a single post but in this case the number of posts was more than one inasmuch as there were two posts of Principals and on that basis it may be argued that where the number of posts was more than one, the decision in Dr. Paswan's case would not prohibit the application of roster even in case at some stage it led to more than 50% reservation. 17. However, to my mind a complete answer to the question, is to be found in Indra Swahney's case, AIR 1993 SC 477 vide para 96 where a Constitution Bench of the Supreme Court laid down that a year and not the entire cadre strength was to be taken as the unit or base, as the case may be, for applying the 50% rule. It follows, therefore, that every time the posts are going to be filled up, there must at least be 50% of the posts available against which candidates from unreserved 'categories may also be considered and in case an advertisement totally and completely shuts out candidates from unreserved categories from any consideration it would violate the 50% rule laid down by the Supreme Court. It will be useful to reproduce here para 96 of Indra Swahney's decision : "96. The next aspect of this question is whether a year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji ( AIR 1963 SC 649 ) does not deal with this aspect but Devadasan ( AIR 1964 SC 179 ) (majority opinion) does. Mudholkar, J. speaking for the majority says: "We would like to emphasise that the guarantee contained in Article 16 (1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. Mudholkar, J. speaking for the majority says: "We would like to emphasise that the guarantee contained in Article 16 (1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and therefore every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities." On the other hand is the approach adopted by Ray, C.J. in Thomas ( AIR 1976 SC 490 ). While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such in our opinion, the approach adopted by Ray, C.J. would not be consistent with Article 16. True it is that the backward classes who 'are victims' of historical social injustice which has not ceased fully as yet are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go i.e., in a year or two. The position can be better explained by taking an illustration. 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 O.B.Cs. in the unit/service/category is only 50, a short fall of 220. Similarly the number of members of scheduled castes and scheduled tribes is only 20 and 5 respectively, shortfall of 130 and 75. At a given point of time, let us say, the number of members of O.B.Cs. in the unit/service/category is only 50, a short fall 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) contelT1plates 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." In a recent decision in the case of R.K. Sabharwal v. State of Punjab, 1995 (2) S.C.C. 745 a five Judges Bench of the Supreme Court quoted a passage from paragraph 96 of Indra Swahney's case and observed as follows : "The quoted observations clearly illustrate that the rule of 50% a year as a unit and not the entire strength of the cadre has been adopted to protect the right of the general category under clause (1) of Article 16 of the Constitution of India." The above discussions lead to unescapable conclusion that the impugned advertisement cannot be defended even on the plea of application of roster and it was bad and unsustainable in law for reserving both the posts and thereby completely shutting out from consideration candidates from the general category. 18. At this stage it will not be out of place to take note of the amended roster points issued by the State Government vide letter no. 18. At this stage it will not be out of place to take note of the amended roster points issued by the State Government vide letter no. 34, dated March 11, 1994, issued under the signature of Commissioner-cum-Secretary: Personnel & Admn. Reforms Department. The significant change introduced in the new roster is that every' second or the alternate point is now for the unreserved' category. The latest roster points are arranged in the following manner : 1. unreserved, 2. scheduled castes, 3. unreserved, 4. scheduled tribes, 5. unreserved, 6. extremely backward classes, 7. unreserved, 8. backward classes, 9. unreserved, 10. scheduled castes and so on and so forth. It is, thus, clear that in cases like the present one where two or more vacancies are available the present roster is likely to satisfy the 50% rule. In case, however, there is only one vacancy available to be filled up and that falls against a reserved category as per the roster point whether or not it would be held to violate the 50% rule is a point which may arise for decision in a given case. However in the facts and circumstances of the present case, I am not required to go into that question. 19. The next question that arises is what relief may be granted to the petitioners? Must the advertisement be quashed? Must the appointment of Smt. Hembrom on the basis of the advertisement be also quashed? 20. I think that in the facts and circumstances of the case, that may not be necessary. From the advertisement made above it is evident that it would have been perfectly valid had it left one of the two posts unreserved for the general category. It has also been noted that the Commission did not make any recommendation in respect of one of the two posts which consequently, still remains vacant. Thus what a valid advertisement would have done can still be achieved by issuing a direction to the State to fm up the one remaining vacancy from the general category. 21. The Commissioner-cum-Secretary, Human Resources Development Department is, accordingly, directed to issue the necessary requisition on the Commission to make recommendation to fill up the remaining post of Principal from the unreserved/general category. Such a requisition must be made within one month from the date of receipt/production of a copy of this order. 21. The Commissioner-cum-Secretary, Human Resources Development Department is, accordingly, directed to issue the necessary requisition on the Commission to make recommendation to fill up the remaining post of Principal from the unreserved/general category. Such a requisition must be made within one month from the date of receipt/production of a copy of this order. The Bihar Public Service Commission shall make its recommendation within three months from the date of receipt of requisition after complying with all the formalities. The appointment shall then be made in accordance with law and without any undue delay. 22. With the above observation and directions, the two writ petitions stand disposed of.