JUDGMENT By the Court.—Heard Shri Alok Kumar Yadav, learned counsel for the petitioner. Learned Standing Counsel appears for State respondents. Shri Ravi Kiran Jain, Senior Advocate assisted by Shri Ramesh Chand Tiwari appears for Dr. Vikrama Prasad and Dr. K.N. Yadav-respondent Nos. 3 and 4. No one appears for Dr. Permanand T. Dudhey-respondent No. 5. 2. On the last occasion, we had asked the office to provide service report on the service of notices on Dr. Permanand T. Dudhey-respondent No. 5. The office has reported on 6.8.2008, that more than four months have passed, but neither acknowledgment nor unserved notice has been received in the office as yet. Under the Rules of the Court, the respondent No. 5 shall be deemed to be served. 3. There are seven State Homoeopathic Medical Colleges in the State of Uttar Pradesh. The posts of Principal fall in a cadre and are to be filled up by direct recruitment under the U.P. State Homeopathic Medical Colleges (Conditions of Service) Rules, 1990. Initially there were ten State Homeopathic Medical Colleges and ten posts in the cadre given in the schedule appended to the rules. With the closure of three Homeopathic Medical Colleges, there are only seven posts of Principal, as against ten, in the cadre. 4. The petitioner does not fall in any reserved category. He is eligible and applied in pursuance of the advertisement dated 4.1.2006, to fill up three posts of Principal as a general candidate. One post each in the advertisement was reserved for Scheduled Caste; Other Backward Classes and general category. The petitioner challenged the applicability of rules of reservation, to the vacancies notified by the U.P. Public Service Commission on 4.1.2006. The Court was prima facie satisfied that the reservation on vacancies on the date of advertisement dated 7.5.2005 exceeded 50%. An interim order was made on 4.1.2006 restraining the State Government from appointing persons recommended by the Commission. 5. Learned counsel for the petitioner states that out of seven posts of Principal, only one post can be reserved for Scheduled Caste, having 21% quota in vertical reservation and that two posts will be reserved for other backward classes having 27% reservations, and three for general category. According to him, out of seven, only four Principals are working in the Colleges, out of which two belong to general category. According to him, out of seven, only four Principals are working in the Colleges, out of which two belong to general category. Shri S.K. Ram belongs to Scheduled Caste and one post, which had been filled up by the other backward class candidate, had fallen vacant and was advertised in 2003. It was filled up by other backward classes candidate. It is contended by the petitioner that the reservation, as interpreted in R.K. Sabharwal and others v. State of Punjab and others, AIR 1995 SC 1371 ; State of U.P. and another v. Pawan Kumar Tiwari and others, (2005) 2 SCC 10 and R.S. Garg v. State of U.P. and others, (2006) 6 SCC 430 , is to be applied on posts and not on vacancies and that posts must be filled up according to the roster subject to the condition that the reservation should not be exceed 50% of the total number of posts in the cadre. 6. In the counter-affidavit of Shri G.C. Upadhyay, Section Officer, U.P. Public Service Commission, Allahabad it is stated in paragraphs 7 to 13 and 21 as follows : “7. That in the year 1996 first selection to fill up two vacancies in the cadre of Principals of Government Homeopathic Medical Colleges was held in accordance with the U.P. Public Service (Scheduled Caste, Scheduled Tribe and Other Backward Classes) Reservation Act, in short Act No. 4 of 1994. The vacancies in the cadre of Principals of Government Homeopathic Medical Colleges are being accordingly filled in accordance with reservation policy of the State Government strictly through roster. 8. That Section 3, sub-clause (5) of U.P. Act No. 4 of 1994 provides for roster to be issued by the Governor under Section 3 sub-clause (1) of the Act and in exercise of his power under Section 3 sub-clause (1) of the Act, the Governor issued G.O. No. 4/1/2001-Karmic-2/2002 dated 25.6.2002. 9. That according to roster so published, first vacancy in the cadre of Principal in Government Homeopathic Medical Colleges was to be filled by a candidate belonging to a Scheduled Caste Category, second by a candidate belonging to a general category and third by a candidate belonging to other backward classes, fourth again by a candidate belonging to a general category, fifth again by a candidate belonging to a Scheduled Caste category and sixth again by a candidate belonging to OBC category and so on. 10. That earlier in the year 1996 first selection to fill two vacancies in the cadre of Principals of Government Homeopathic Medical Colleges was held in which following two candidates were selected by the U.P. Public Service Commission namely : (a) Dr. S.K. Ram (SC) (b) Dr. B.N. Singh (General) 11. That second selection to fill three more vacancies was held in the year 2001 in which following two persons were ultimately appointed namely : (a) Dr. S.K. Verma (OBC) (b) Dr. A.K. Verman (General) 12. That Dr. S.K. Verma retired from service in the year 2002 the vacancy so created in OBC category was advertised by the Commission in the year 2002 but as no candidate in OBC category was found suitable, could not be selected. This post was re-advertised in the newspaper ‘Employment News’ dated 12-18 July, 2003 against which Dr. Vikrama Prasad (OBC) was interviewed on 18th November and was declared selected on 19.12.2005. 13. That it is pertinent to submit here that the above mentioned writ petition has been filed by the petitioner without impleading the selected candidates as respondents in the present writ petition which is not maintainable and therefore, it is liable to be dismissed on this ground alone by this Hon’ble Court. 21. That the averments made in para 13 of the writ petition are not admitted. In reply it is submitted Dr. Vikram Prasad has been selected as OBC candidate as against the vacancy created by retirement of Dr. S.K. Verma in the year 2002, which was earlier advertised in the year 2002 but as no candidate in OBC category was found suitable could not be selected. This vacancy had to be re-advertised in newspaper Employment News dated 12-18 July, 2003 against which five candidates appeared in the interview out of which Dr. Vikrama Prasad was selected. It may be pointed out here that petitioner did not apply as against the advertisement dated 12-18 July, 2003, was not a candidature and could not have any grievance as against the selection of Dr. Vikram Prasad particularly when the petitioner belongs to general category, he could not have applied against the post reserved for OBC category. It may be pointed out here that petitioner did not apply as against the advertisement dated 12-18 July, 2003, was not a candidature and could not have any grievance as against the selection of Dr. Vikram Prasad particularly when the petitioner belongs to general category, he could not have applied against the post reserved for OBC category. As regards other selection for three post, a merit list in order of marks obtained in the interview of all the 21 candidates was prepared by the Commission and since his name did not appeared in the merit list prepared by Commission was automatically excluded.” 7. After hearing learned counsel for the parties and perusing the judgments as aforesaid, we find that out of seven posts of Principals in the State Homeopathic Medical Colleges, only one post would fall in the quota of Scheduled Caste, and since the quota of Scheduled Caste was already filled up on 7.5.2005, out of three, only one post was to be reserved for general category and two for other backward classes. 8. We are informed that Shri S.K. Ram, the only Scheduled Caste candidate, has retired and that the U.P. Public Service Commission had advertised his post on 16.2.2008. 9. In R.K. Sabharwal (supra) the Supreme Court explained the meaning of posts and vacancies. It was observed in paragraph 6 that 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. 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. It is only when all the roster-points in the cadre are filled, the required percentage of reservation is achieved. 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. It is only when all the roster-points in the cadre are filled, the required percentage of reservation is achieved. Following Indra Sawhney v. Union of India, AIR 1993 SC 477 , it was observed that 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 and since quality of opportunity has to be maintained, for the purposes of applying the rule of 50%, a year should be taken as the unit and not the entire strength of the cadre or the unit as the case may be. It was further observed in R.K. Sabharwal (supra) that the operation of a roster for filling the cadre-strength, by itself ensures that the reservation remains within the 50% limit. Indra Sawhney’s case is not the authority for the point that the roster survives after the cadre-strength is full and the percentage of reservation is achieved. The Supreme Court followed the Division Bench of Allahabad High Court in J.C. Malik v. Union of India and others, (1978) 1 Serv LR 844, interpreting Railway Board circular dated April 20, 1970 providing 15% reservations for the Scheduled Castes. The High Court held that the percentage of reservation is in respect of the appointment to the posts in a cadre. On the basis of the material placed before the High Court reached the conclusion that if the reservation permitted in the vacancies after all the posts in a cadre are filled then serious consequences would ensue and the general category is likely to suffer considerably. 10. In State of U.P. and another v. Pawan Kumar Tiwari and others (supra) the treatment of fraction of a vacancy was considered. The Supreme Court held that if the fraction is one-half or more, it should be treated as one and if less than one-half it should be ignored. 11. 10. In State of U.P. and another v. Pawan Kumar Tiwari and others (supra) the treatment of fraction of a vacancy was considered. The Supreme Court held that if the fraction is one-half or more, it should be treated as one and if less than one-half it should be ignored. 11. In R.S. Garg (supra) the Supreme Court held in paragraph 40 that the percentage of reservation to the posts cannot exceed the quota and observed “It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail.” 12. In the present case, 21% of seven posts works out to 1.47. The fraction of less than half has to be ignored and thus only one out of seven posts can be reserved for Scheduled Caste. In the same manner the reservation for other backward class at 27% for seven posts will be 1.89 and since the fraction is more than half, two posts out of seven shall be reserved for other backward class candidates. The remaining four posts will go to the general candidates. In the present case on the date of advertisement i.e. 4.1.2006, out of seven posts, Dr. S.K. Ram (SC); Dr. B.N. Singh (General); Dr. Vikrama Prasad (OBC) and Dr. A.K. Berman (General) were working. The three vacancies as such were to be shared by OBC and general candidates. Only one OBC candidate and two general candidates could be accommodated to serve both the rules of reservation on the total number of posts in the cadre and which would not have violated 50%. 13. We, therefore, find that the posts reserved for Scheduled Caste on which Dr. Permanand T. Dudhey was selected was in excess of the percentage of reservation for Scheduled Caste candidate. 14. The writ petition is consequently allowed. The advertisement of vacancy for general candidates wrongly reserved in the Scheduled Caste candidate dated 4.1.2006 and the selections on the post is set aside. This judgment however will not affect the selections of Dr. K.N. Yadav (OBC) and Dr. Vikrama Prasad (General) selected in pursuance of the same advertisement. 15. We are informed that one post of Scheduled Caste held by Dr. S.K. Ram (SC) had fallen vacant on his retirement and has been advertised. We, therefore, leave it open to the State Government that in case Dr. K.N. Yadav (OBC) and Dr. Vikrama Prasad (General) selected in pursuance of the same advertisement. 15. We are informed that one post of Scheduled Caste held by Dr. S.K. Ram (SC) had fallen vacant on his retirement and has been advertised. We, therefore, leave it open to the State Government that in case Dr. Permanand T. Dudhey applies, he may be adjusted on that post as he was selected by the selection committee and is working on the post of Principal. In that case the State Government will consider to cancel the advertisement dated 7.5.2005 made to fill up the vacancy of Scheduled Caste candidate. Resultant vacant post of general category candidate may be advertised. There shall be no order as to costs. ————