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Allahabad High Court · body

2009 DIGILAW 3010 (ALL)

NEM SINGH v. STATE OF U. P.

2009-09-02

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard learned counsel for the parties. As agreed and requested by learned counsel for the parties this writ petition is being heard and decided finally under the Rules of the Court at this stage. 2. Aggrieved by the order dated 24.12.2005 passed by the Regional Joint Director of Education, Agra declining to approve promotion of the petitioner on the post of Lecturer on the ground that the post is liable to be filled in by a reserve category candidate belong to scheduled castes hence his promotion cannot be accepted, the present writ petition has been filed by Sri Nem Singh, an Assistant Teacher working at Barauli Inter College Barauli Rao, Aligarh (hereinafter referred to as the “College”) seeking a writ of certiorari for quashing the same. 3. The undisputed facts in brief are that the College is recognised by the Board of High School and Intermediate (hereinafter referred to as the “Board”) under the U.P. Intermediate Education Act, 1921 (hereinafter referred to as the “Act, 1921”) and recruitment to the post of teachers in the College is governed by the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as the “Act, 1982”) and the rules framed thereunder. 4. The petitioner was appointed as Assistant Teacher, B.T.C. grade on 28.7.1974, promoted in C.T. grade on 14.02.1979 and in L.T. grade on 14.2.1999. He possess the educational qualification of M.A. (Hindi) and M.A. (Sanskrit). Due to retirement of one Sri Bhagwati Prasad Gaur, Lecturer, on 30.6.2003, a vacancy on the post of Lecturer occurred on 1.7.2003. The sanctioned strength of Lecturers in the College being six, three were already appointed by direct recruitments and remaining three posts were to be filled in by promotion. The above vacancy occurred due to retirement of Sri Bhagwati Prasad Gaur was thus liable to be filled in by promotion in view of Rule 10 of U.P. Secondary Education Service Selection Board Rules 1995 (hereinafter referred to as the “1995 Rules”) which provides that 50% of the posts shall be filled in by promotion and 50% by direct recruitment. The above vacancy occurred due to retirement of Sri Bhagwati Prasad Gaur was thus liable to be filled in by promotion in view of Rule 10 of U.P. Secondary Education Service Selection Board Rules 1995 (hereinafter referred to as the “1995 Rules”) which provides that 50% of the posts shall be filled in by promotion and 50% by direct recruitment. The petitioner submitted an application seeking his promotion on the post of Lecturer (Sanskrit) on 1.7.2003 whereupon the respondent No. 4, Committee of Management resolved on 27.07.2003 to fill in the above vacancy by promoting the petitioner on the post of Lecturer and sent the above recommendation in accordance with Rules to the educational authorities for approval alongwith a copy of the seniority list. The District Inspector of Schools, Aligarh (respondent No. 3) (in short “DIOS”) raised some objection about the reservation quota of scheduled castes and directed Management to sent requisition to fill in the said vacancy by direct recruitment treating it to be a reserved vacancy for Scheduled Castes. The DIOS thereafter sent another letter dated 12.08.2004 informing the Joint Director of Education that are six sanctioned posts of Lecturers in the College and five are already filled in, three by direct recruitment and two by promotion but no scheduled castes candidate is available. However, he admits that the post is to be filled in by promotion being within the promotion quota as per Rules. The Joint Director of Education declined approval only on the ground that out of six vacancies one ought to have been filled in by a reserve category candidate of scheduled caste and, therefore, the petitioner’s promotion cannot be approved. 5. Learned counsel for the petitioner submitted that it is not a case of the respondents that any candidate of scheduled castes category was available in the College for promotion. In the absence of any suitable and eligible candidate available in the College for promotion, the same could not have been denied to the petitioner merely because he is a general category candidate, though fulfil requisite qualification. When a general category candidate suitable for promotion is available, the vacancy fell in promotion quota could not have been requisitioned for direct recruitment and placed reliance on a Division Bench decision of this Court in Smt. Sunita Bhagat v. State of U.P., 2005 All.L.J. 3828. 6. When a general category candidate suitable for promotion is available, the vacancy fell in promotion quota could not have been requisitioned for direct recruitment and placed reliance on a Division Bench decision of this Court in Smt. Sunita Bhagat v. State of U.P., 2005 All.L.J. 3828. 6. He further argued that in any case one post in promotion quota could not have been left reserved for scheduled castes by clubbing together the entire sanctioned strength of Lecturers ignoring the relevant source of recruitment. He contended that the sanctioned strength of Lecturers being six, three were to be filled in by direct recruitment and three by promotion as prescribed under Rule 10 of 1995 Rules. In order to apply the percentage of reservation prescribed in U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the “Act, 1994”) the posts which are liable to be filled in by direct recruitment could not have been clubbed with those of promotion and both are liable to be treated separately. Keeping one post out of three to be filled in by promotion as reserved for scheduled castes amounts to making 33% reservation though the quota for scheduled castes under Act, 1994 is only 21% and, therefore, even otherwise the assumption on the part of the respondents to fill in the vacancy in question by a reserve category candidate of scheduled caste is illegal and unconstitutional as held by this Court in Smt. Pholpati Devi v. Smt. Asha Jaiswal and others, 2009(2) ADJ 90 ; Vishwajeet Singh (Dr.) and others v. State of U.P. and others, 2009(4) ADJ 373 and the Apex Court decision in R.S. Garg v. State of U.P. and others, 2006(6) SCC 430 . 7. Learned Standing Counsel, however, refuted the above submission and sought to support the impugned orders for the reasons stated therein as well as the averments contained in the counter affidavit. 8. The short questions up for consideration in this case are two as under : 1. Whether for applying reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes the quota is to be considered in respect to the total number of posts in the cadre irrespective of the source from which they are to be filled in; and 2. Whether for applying reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes the quota is to be considered in respect to the total number of posts in the cadre irrespective of the source from which they are to be filled in; and 2. Whether in the light of Rule 10 and 14 of 1995 Rules the eligibility of the candidate in promotion quota is to be considered confining to a reserve category or the candidates available for promotion as a whole irrespective of the relevant category. 9. It cannot be disputed that reservation made for Scheduled Castes, Scheduled Tribes and Other Backward Classes in services vide Act, 1994 is applicable for appointment to the post of Lecturer in the College in the case in hand also. Section 3 thereof provides for the extent of reservation in favour of the above mentioned three categories and it reads as under : “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 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 per cent; (b) in the case of Scheduled Tribes two per cent; (c) in the case of case other twenty seven per cent; backward classes of citizens. Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule II. (2) If, even in respect of any year of recruitment, any vacancy reserved for any category of persons under sub-section (1) remains unfilled, special recruitment shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category. (3) If, in the third such recruitment referred to in sub-section (2), suitable candidates belonging the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes. (3) If, in the third such recruitment referred to in sub-section (2), suitable candidates belonging the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes. (4) Where, due to nonavailability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled even after special recruitment referred to in sub-section (2), it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub-section (1) shall not exceed fifty one per cent of the total vacancies. (5) The State Government shall, for applying the reservation under sub-section (1), by a notified order, issue a roster which shall be continuously applied till it is exhausted. (6) If a persons belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1). (7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.” 10. A bare perusal of Section 3(1) of Act, 1994 shows that the limit of reservation of vacancies prescribed therein is in respect to the direct recruitment and the roster prescribed under sub-section 5 is also with respect to sub-section 1, i.e., for direct recruitment. With respect to promotion sub-section 7 of Section 3 provides that the Government Orders as applicable providing for reservation in promotion shall continue to apply till they are modified or revoked. It is not in dispute that in the matter of promotion also reservation to the extent as provided under sub-section (1) of Section 3 to the above three categories has been made applicable. The purpose, however, for referring the above provision is to show that the legislature also has considered reservation in respect to direct recruitment and promotion separately treating the same different in the context of reservation. The reason is quite obvious. The purpose, however, for referring the above provision is to show that the legislature also has considered reservation in respect to direct recruitment and promotion separately treating the same different in the context of reservation. The reason is quite obvious. The persons who will be entitled to be considered in the two kinds of recruitment will be different inasmuch as the word “promotion” itself concede the persons who are already in service who will be considered but in case of direct recruitment it relates to selection and appointment from open market of the persons who are not already in service of the employer who has resorted to the concerned direct recruitment. The procedure and criteria for two kinds of selection is also different. Therefore, by no stretch of imagination it can be held that for the purpose of applying reservation under Section 3 of Act, 1994 the posts/vacancies as are available for direct recruitment can be clubbed with those which are to be filled in by promotion in order to work out the vacancy or post, if any, available for reservation. For example if there are 10 posts and all are to be filled in by direct recruitment, the reservation prescribed in sub-section 1 of Section 3 of Act, 1994 would be applicable to all the 10 posts but if 5 are to be filled in by promotion and 5 by direct recruitment, for the purpose of determining the vacancy, if any, available for reservation, both have to be considered separately and cannot be clubbed in order to find out the number of vacancies/posts available for reservation in a particular category. 11. A similar controversy came to be considered before this Court in Smt. Pholpati Devi (supra) where there were 7 sanctioned posts of Lecturers and taking the same together the authorities decided to fill in one post from reserve category, i.e., scheduled castes. The Court held as under : “In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at the best four posts would have been available for one source of recruitment, i.e., direct recruitment or promotion. The reservation for scheduled castes is 21%. The Court held as under : “In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at the best four posts would have been available for one source of recruitment, i.e., direct recruitment or promotion. The reservation for scheduled castes is 21%. If we treat one of the vacancies in either of the source of recruitment in the institution as reserved for scheduled caste, it would be more than 21%. The Apex Court in R.S. Garg v. State of U.P. and others, 2006 (6) SCC 430 has held as under : “40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements.” Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it cannot be exceeded thereto. In the case in hand, one of the vacancy if treated to be reserved for scheduled caste candidate out of four vacancies, the reservation would come to 25%, which would exceed the maximum extent of reservation prescribed for scheduled caste candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent No. 1 treating one post of lecturer reserved for scheduled casts in promotion quota, therefore, was illegal and has rightly been set aside by Hon’ble Single Judge.” 12. That being so, such reservation could not have been upheld and the appointment and promotion of respondent No. 1 treating one post of lecturer reserved for scheduled casts in promotion quota, therefore, was illegal and has rightly been set aside by Hon’ble Single Judge.” 12. In Vishwajeet Singh (supra) another Division Bench of this Court has considered the question where there are more than one posts in the cadre as to whether by applying roster also the vacancy can be filled in by a reserve category candidate or not and dealing this aspect in detail from para 75 to 86 the Division Bench held that in any manner the reservation cannot exceed the prescribed percentage which includes the roster as well as even rounding of the percentage. The relevant part of the judgment is extracted as under : “75. Although first point is reserved for Scheduled Castes but there is no dispute that if there is a single post cadre that has to be treated to be unreserved and in that context, the roster will be inapplicable. Now taking the example of two posts cadre, if out of 2 posts, even one post is reserved for Scheduled Castes or Other Backward Class, there will be reservation of 50% either for Scheduled Castes or Other Backward Class. The reservation for Scheduled Castes and Other Backward Class being respectively 21% and 27%, if one post is filled by Scheduled Castes, then 50% posts have to be treated to be filled by Scheduled Castes hence, out of 2 posts cadre one post can neither be reserved for Scheduled Castes or Other Backward Classes since in either case, the reservation for that category be 50% which is contrary to sub-section (1) of Section 3. A Division Bench of our Court has occasion to consider the applicability of reservation when there are only two posts in a cadre in writ petition No. 1208 (S/B) of 2008, Dharam Pal Singh Chauhan and another v. State of U.P. and others, decided on 19.11.2008. In the Irrigation Department there were two posts of Engineersin Chief. The State took a decision to fill up one post of EngineerinChief (Designing and Planning) from the candidate belonging to Scheduled Castes category. The promotion of Scheduled Castes category on second post was challenged in the writ petition by two candidates claiming that second post cannot be reserved for Scheduled Castes category candidate. The State took a decision to fill up one post of EngineerinChief (Designing and Planning) from the candidate belonging to Scheduled Castes category. The promotion of Scheduled Castes category on second post was challenged in the writ petition by two candidates claiming that second post cannot be reserved for Scheduled Castes category candidate. The submission raised on behalf of the petitioner has been noted in paragraph 3 of the judgment, which is quoted herein below : “According to the submission of Sri S.K. Kalia learned Senior Counsel appeared for the petitioners, since there are only two posts of the Engineerinchief, and though, one is occupied by a candidate of General category, the other cannot be reserved for the Scheduled Caste category on the ground that reservation quota of the Scheduled Castes category is 21% and in case one post out of two, is provided to the candidate of Scheduled Castes category, the reservation quota shall travel beyond the out limit of 21% provided by the statute.” 76. Learned Advocate General, who defended the State action contended before the Bench that even if out of 2 posts, one post is reserved for Scheduled Castes, the reservation is well within 50%. The said contention was rejected by the Bench. Following was laid down in paragraph 56 : “Learned Advocate General submitted that by issuing the Government order dated 26.6.2002, the first point has been given to Scheduled Castes and second point has been given to the general category and accordingly, even if there are two posts, one post can be reserved for SC candidates as it will be within the outer limit of 50% provided by Hon’ble Supreme Court through various pronouncements (supra). The submission of the learned counsel seems to be misconceived. While reading sub-section (5) of Section 3, we cannot overlook sub-section (1) of Section 3. Moreover, sub-section (5) itself says that the Government shall “ for applying the reservation under sub-section (1) by notified order, issue a roster, “meaning thereby sub-section (5) has been inserted with reference to sub-section (1) of Section 3. The aims and object of 1994 Act also starts by reference to post, means the total number of posts available in a cadre and from such available post certain percentage is reserved for Scheduled Castes and Schedule Tribes and OBC category candidates in view of the provisions contained in sub-section (1) of Section 3. 77. The aims and object of 1994 Act also starts by reference to post, means the total number of posts available in a cadre and from such available post certain percentage is reserved for Scheduled Castes and Schedule Tribes and OBC category candidates in view of the provisions contained in sub-section (1) of Section 3. 77. The Division Bench held that reservation for Scheduled Castes which is prescribed as 21% under Section 3(1) of 1994 Act cannot exceed. Considering the roster points as prescribed by notification dated 25.6.2002, the Division Bench held that following the Supreme Court judgment in R.S. Garg case (supra) that in the event of conflict between reservation and roster, the former shall prevail. Paragraphs 86, 94 and 121 being relevant are quoted below : “86. Needless to say that keeping in view the letter and spirit of the Article 15 and 16, the reservation is to be provided to respective quotas of various categories. The State does not have got right to travel beyond respective quotas of categories. No reservation can be provided beyond 21% to SC candidates in view of sub-section (1) of Section 3 of 1994 Act, hence it cannot be done by applying roster which is meant to enforce the reservation within respective quota of various categories. 94. Moreover, since the reserved quota of Scheduled Castes is 21%, hence whether it is direct recruitment or promotion, State has no right to travel beyond that under the garb of “rostere”. It is settled law that what cannot be done directly, it cannot be done indirectly, vide 2003 (8) SCC 593 : Dayal Singh and others v. Union of India. Abuse of Power and consequences. 121. Subject to above, we record our finding as under : (1) In the event of conflict between the quota of reservation and roster, the former shall prevail over the later, as held by Hon’ble Supreme Court in the case of R.S. Garg (supra). While applying quota for reservation and roster, the State have to confine the outer limit of reservation provided by 1994 Act for SC, ST and OBC category. (2) The extent of reservation provided by sub-section (1) of Section 3 of 1994 Act, is mandatory. In the matter of promotion or recruitment reservation cannot exceed the outer limit of 21%, 2% and 27% for SC, ST and OBC. (2) The extent of reservation provided by sub-section (1) of Section 3 of 1994 Act, is mandatory. In the matter of promotion or recruitment reservation cannot exceed the outer limit of 21%, 2% and 27% for SC, ST and OBC. (3) Under the garb of sub-section (5) while applying roster or sub-section (7) of Section 3 of 1994 Act, the State cannot travel beyond the outer limit of reservation provided by sub-section (1) of Section 3 of 1994 Act. Meaning thereby, even while applying roster for SC, ST or OBC, the outer limit of 21% 2% or 27% should be adhered to. (4) The outer limit of 50% provided by Article 16 (4B) of the Constitution or by Hon’ble Supreme Court right from M.R. Balaji’s case (supra) till date, includes the reservation for all the categories or classes of employees. In case reservation is provided only for one category like in the present case, 21% to SC category, then it does not mean that State has right to enhance reservation upto 50% suo motu exceeding the statutory quota provided by the Act and statute. 50% rider is the outer limit permissible for all categories and in case under the Act or statutes lesser percentage of reservation has been provided to any class, then that will be the outer limit for the respective classes as in the present case, reservation for SC is 21% and it cannot be enhanced to 50%. (5) While exercising power for purpose of reservation keeping in view the law laid down by the Hon’ble Supreme Court in M. Nagraj’s case (supra) to find out the backwardness or inadequacy of representation keeping in view the necessity and efficiency provided by Article 335 of the Constitution, the Government cannot travel beyond the outer limit of quota provided under sub-section (1) of Section 3 of 1994 Act for SC,ST and OBC i.e. 21%, 2% and 27% respectively in the manner of promotion. (6) Any reservation made exceeding the outer limit provided under the 1994 Act or the statutes, shall be deemed to be excessive reservation and the reservation so made, may be struck down by the Court as it would amount to derogation of constitutional requirement as held in M. Nagraj’s case (supra). (6) Any reservation made exceeding the outer limit provided under the 1994 Act or the statutes, shall be deemed to be excessive reservation and the reservation so made, may be struck down by the Court as it would amount to derogation of constitutional requirement as held in M. Nagraj’s case (supra). In the present case since the sanctioned strength of the post of EngineerinChief is two and the quota of Scheduled Castes is 21% under sub-section (1) of Section 3 of the 1994 Act, one out of two posts cannot be reserved for Scheduled Caste.” 78. Now example of 3 posts cadre is taken. If in 3 cadre posts, one post is reserved for Scheduled Castes that will be 33% reservation or one post is reserved for Other Backward Class that shall be again 33% reservation which is against the percentage prescribed under sub-section (1) of Section 3. Now, example of 4 cadre posts is taken. With regard to 4 posts in one stream recently, a Division Bench of this Court has considered the question of applicability of reservation in the case of Smt. Pholpati Devi v. Smt. Asha Jaiswal and others, 2009 (2) ADJ 90 . 79. In 4 cadre posts, if one post is reserved for Scheduled Castes then reservation for Scheduled Castes be 25% which is impermissible. However, if one post is treated to be reserved for Other Backward Class then reservation for Other Backward Class shall be only 25% i.e. within 27% as prescribed under sub-section (1) of Section 3. Thus, out of four posts, one post can be validly reserved for Other Backward Class. Now an example of five posts cadre is taken. For five posts cadre, if one post is reserved for Scheduled Castes that will be 20% and will be within 21% as prescribed under sub-section (1) of Section 3. One post for Other Backward Class can also be very well reserved out of five cadre posts since it shall be within the 27% as prescribed. Thus, for giving reservation to Scheduled Castes and Other Backward Class, it is clear that there has to be five posts in a cadre. In the roster point, the first point which comes for Schedule Tribes is at serial No. 47. Thus, even according to roster, Schedule Tribes can get reservation at the 47th post. Thus, for giving reservation to Scheduled Castes and Other Backward Class, it is clear that there has to be five posts in a cadre. In the roster point, the first point which comes for Schedule Tribes is at serial No. 47. Thus, even according to roster, Schedule Tribes can get reservation at the 47th post. The above view of ours is fully supported by the judgment of the Supreme Court in the case of R.S. Garg v. State of U.P. and others, (2006) 6 SCC 430 . The facts of R.S. Garg case needs to be noted in some detail. In the aforesaid judgment, both the appellant and respondents were working as Assistant Directors. The appellant having been appointed in the year 1972 whereas the third respondent was appointed on 13.1.1987 on adhoc basis. There were six posts of Deputy Director of Factories in the State of U.P. out of which four posts were designated of Deputy Director of Factories (Administration), one as Deputy Director of Factories (Chemical) and one Deputy Director of Factories (Engineering). The post of Assistant Director of Factories was the feeder post. The Government converted the post of Deputy Director Factories (Chemical) to Dy. Director Factories (Administration). The third respondents was promoted as Deputy Director of Factories (Administration) as a reserved category candidate, which promotion was challenged in the Supreme Court. One of the grounds of challenge was that reservation to the post of Scheduled Castes was illegal and unjust by reason thereof percentage of reservation for promotion cannot be raised from 21 to 33%. 80. The apex Court also noticed the roster issued in 1994 Act and noticed that out of 6 posts, first and fourth posts shown to be reserved for Scheduled Castes. The apex Court clearly held that such reservation was impermissible. The Court further held that reservation could not have exceeded 21% for Scheduled Castes. Following was laid down in paragraphs 34 and 40 : “34. In terms of the 1994 Act, the reservation was to be confined to 21%. There were 6 posts. If the roster was to be followed, 2 posts would be reserved for the Scheduled Caste candidates, which is impermissible. 40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Schedule Tribes (sic Caste) candidates by the State itself. There were 6 posts. If the roster was to be followed, 2 posts would be reserved for the Scheduled Caste candidates, which is impermissible. 40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Schedule Tribes (sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements.” 81. The apex Court thus, held that the promotion given to third respondents was not in accordance with law. The appeal of the General Category candidate was allowed. 82. In the above judgment, the apex Court has clearly held that in the event of conflict between percentage of reservation as prescribed under Section 3 of the 1994 Act and roster issued under sub-section (5) of Section 3, the percentage of roster shall prevail. Another judgment, which is relevant in the present context is the judgment of the Supreme Court in the case of State of U.P. and other v. Pawan Kumar Tiwari and others, reported in (2005) 2 SCC 10 . Pawan Kumar Tiwari, the respondent in the appeal had appeared in the selection for the post of Civil Judge (Junior Division) in U.P. Judicial Service. In the General Category candidate his merit position was 47. There were only 93 posts advertised. The respondent was not selected and 46 General Category candidates were selected. Rest 47 seats were distributed amongst Scheduled Castes 20 posts, Other Backward Class 26 posts Schedule Tribes 1 post. The writ petition was filed by Pawan Kumar Tiwari, which was allowed, against which State of U.P. filed an appeal. The apex Court affirmed the judgment of the High Court and took a view that reservation for Scheduled Castes, Other Backward Classes and Schedule Tribes shall not exceed 50% and since 47 posts were given to the reserved category candidates out of 93, which was more than 50%. Among General Category candidate 47 candidates ought to have been appointed. Paragraphs 2,8 and 9 of the judgment of the apex Court is quoted herein below : “2. Among General Category candidate 47 candidates ought to have been appointed. Paragraphs 2,8 and 9 of the judgment of the apex Court is quoted herein below : “2. The percentages of reservation, as applicable and as was actually applied, are set out in the following table : Category (prescribed) percentage percentage Number of worked out to reserved posts General 50% 46.50 46 Scheduled Castes 21% 19.53 20 Other Backward Classes 27% 25.11 26 Schedule Tribes 2% 1.86 1 “8. It was submitted by the learned counsel for the appellants that if this principle of rounding off is to be applied then the percentage of reservation in Schedule Tribe category would come to 2 by rounding off 1.86, to the nearest higher value, and in that case a candidate from Schedule Tribe category and not the respondent would be entitled to appointment. We cannot agree. No candidate in Schedule Tribe category has chosen to lay challenge to the selection. We are also not aware if there is any Schedule Tribe category candidate available and qualified for appointment consequent upon his having participated in the process of selection. This plea of the appellants is without any foundation and hence does not deserve to be taken note of. 9. There is yet another reason why the judgment of the High Court has to be maintained. The total number of vacancies was 93. Consequent upon the allocation of reservation and calculation done by the appellants, the number of reserved seats would be 47, leaving only 46 available for general category candidates. Meaning thereby, the reservation would exceed 50% which would be unconstitutional. The total number of reserved seats could not have been more than 46 out of 93.” 83. The Supreme Court in the above case thus, laid down that reservation could not exceed 50%. One more principle which was noticed in the above judgment was principle of rounding off. It is necessary to look into the above principles and examine with regard to applicability of above principle with regard to application of 1994 Act. 84. The principles of rounding off is a principle for rounding a fraction to a nearest whole. The principle has been adopted in those cases, where something cannot be expressed in fraction. The principle of rounding off has been adopted while computing the votes, while computing the posts or vacancies for allocating the different categories. 84. The principles of rounding off is a principle for rounding a fraction to a nearest whole. The principle has been adopted in those cases, where something cannot be expressed in fraction. The principle of rounding off has been adopted while computing the votes, while computing the posts or vacancies for allocating the different categories. The issue can be looked into from another angle. Let us take an example of a cadre having two posts only. As observed above, in a cadre having two posts, no vacancy can be reserved for Scheduled Castes, Schedule Tribes or Other Backward Classes. Since reserving one vacancy in favour of either Scheduled Castes, Schedule Tribes or Other Backward Classes, there shall be reservation for that category up to 50%, which is not permissible under sub-section (1) of Section 3. It can further be contended on behalf of reserved category candidates that even when there are two posts 27% of 2 posts will be 54% which can be rounded of to one. Thus, one post can be reserved for Other Backward Classes even in cadre of two posts. The contention appears to be attractive but on a closer scrutiny, it does not commend us. There cannot be a dispute that principle of rounding of can be applicable with regard to computation of vacancies for reserved for Scheduled Castes, Schedule Tribes and Other Backward Classes. We had occasion to consider the principle of rounding off in another context in the context of percentage of votes in the case of North Central Railway Mens Union Allahabad v. North Central Railway Employees Sangh, 2008 (7) ADJ 390 . Following was laid down in paragraph 15 of the aforesaid judgment : “The principle of rounding off a fraction of a number to a whole number has been applied by the Courts and in some cases have also been provided in statutory Rules under certain circumstances. There are certain factors which cannot be expressed in fraction hence, the Rule of rounding off has been applied as a Rule of necessity. The most common example is with regard to number of seats or posts when are required to be filled by different categories whose percentage is fixed like Rule of reservation for filling posts by candidates of Scheduled Castes, Schedule Tribes, Other Backward Class and other categories. The most common example is with regard to number of seats or posts when are required to be filled by different categories whose percentage is fixed like Rule of reservation for filling posts by candidates of Scheduled Castes, Schedule Tribes, Other Backward Class and other categories. Certain percentage of seats are required to be filled up by Scheduled Castes candidates for example in the State of U.P. by U.P. Public Services (Reservation for Scheduled Castes, Schedule Tribes and Other Backward Class) Act, 1994 provides that 21% posts are to be reserved at the stage of direct recruitment for the Scheduled Castes 2%, for Schedule Tribes 27% for Other Backward Class. The percentage of reservation qua the number of posts is often expressed in fraction. For example, if the posts are ten, 21% will be 2.1 and 27% will be 2.7, applying the principle of rounding off 2.1 shall be treated as 2 and 2.7 shall be treated as 3. This is because the number of posts cannot be expressed in fraction and as a necessity, it has to be expressed in whole number. Contrary to above is the case with admission to a course or for calculation of percentage of the minimum marks in an examination required under rule or advertisement. Percentage of marks can be expressed in fraction hence, the rule of rounding off has not been held to be applicable with regard to percentage of marks. The judgment of this Court in the case of Vani Pati Tripathi v. Director General, Medical Education and Training, Jawahar Bhawan and others, 2003 (1) UPLBEC 427 of which one of us (Justice Ashok Bhushan) was a member, had considered the principles and laid down following in paragraph 6 and 7 : “6. The second instance where the fraction is rounded up are the cases where seats have to be determined according to percentage of reservation for appointment or for admission in an educational institution. When number of seats come into fraction, the said fraction is rounded up according to the prescription of Rule or Statute. In those cases Rule or Statute always provides that fraction to be rounded up to whole or a fraction upto some extent be ignored. The above principle has been applied since a seat or a post can not be expressed in a fraction because seats and posts are always in whole number. In those cases Rule or Statute always provides that fraction to be rounded up to whole or a fraction upto some extent be ignored. The above principle has been applied since a seat or a post can not be expressed in a fraction because seats and posts are always in whole number. For a competitive examination eligibility and the selection on the basis of merit sometimes depend on one mark. One mark when expressed in percentage may generally come in fraction but the said fraction cannot be ignored nor it can be said that the said fraction is insignificant. 7. Learned Counsel for the appellant placed reliance on a Single Judge judgment of this Court in Rajan Seth v. State of U.P. and others, (1992) 1 UPLBEC 636. The aforesaid case arose out of admission in MBBS in Medical College, Jhansi. The writ petitioner made an application to the Principal, Medical College, Kanpur seeking his transfer to Medical College, Kanpur. From the facts of the case it appears that 5% vacancies were to be filled up by transfer. Since 5% of 191 seats come to 9.55, for working out the number of seats, the fraction less than .5 has to be ignored and the figure has to be rounded up to make 10 seats. In the facts and circumstances of the aforesaid case this Court held that 9.55 should be rounded up to 10 seats. The aforesaid decision does not help the appellant in the present case. As observed above rounding up principle has been applied while determining the quota of seats or while determining the majority of votes. The said case relates to seats. Seats and posts cannot be expressed in fraction, hence, in this case fraction is rounded up but marks obtained by candidate in an examination can be expressed in fraction and when a particular merit is required as eligibility the principle of rounding up of less marks to the next higher percentage cannot be accepted. There is no principle that percentage of marks can only be expressed in round figure. Counsel for the appellant could notable to show any authority or Rule in support of his submission.” 85. There is no principle that percentage of marks can only be expressed in round figure. Counsel for the appellant could notable to show any authority or Rule in support of his submission.” 85. Thus, although principles of rounding off is applicable while computing the percentage of vacancies for allocation to reserve category candidates but such rounding off is to be conform to the statutory requirement of percentage of reservation as contained in sub-section (3) of Section 1. In case rounding off exceed the percentage of reservation, the said rounding off cannot be resorted to. The percentage of reservation being fixed by sub-section (3) of Section 1, any method to give effect to said percentage including the application of roster has to be subservient to the percentage of reservation as provided under sub-section (1) of Section 3. The apex Court in R.S. Garg’s case (supra) has categorically laid down that in event there is conflict between percentage provided under Section 3 (1) and roster provided under Section 3 (5), the percentage is to prevail. 86. The judgment of the apex Court in State of U.P. and another v. Pawan Kumar Tiwari and others (supra) also supports our view that rounding off cannot be resorted when reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes exceeds the percentage as provided under Section 3(1). In paragraph 9 of the judgment, the said submission that the percentage worked out for Schedule Tribes comes to 1.86 and should be rounded as 2 was rejected by the Supreme Court holding that accepting the said rounding off, the number of reserved vacancy will exceed 50% ceiling which is unconstitutional hence, the rounding off vacancy of Schedule Tribes was not approved. Thus, it is held that if vacancies for reserved category candidate comes to in fraction of figure, the same can be rounded off but rounding off can be resorted only when reservation is within permissible limit as provided under Section 3 (1).” 13. In view of the above exposition of law the clubbing of vacancies which were to be filled in by promotion alongwith those which were to be filled in by direct recruitment was impermissible in law and the impugned order having been passed ignoring this aspect of the matter is wholly illegal. 14. In view of the above exposition of law the clubbing of vacancies which were to be filled in by promotion alongwith those which were to be filled in by direct recruitment was impermissible in law and the impugned order having been passed ignoring this aspect of the matter is wholly illegal. 14. Now so far as the second question is concerned, the matter is squarely covered by the Division Bench decision of this Court in Smt. Sunita Bhagat (supra) where, after referring to 1998 Rules which are pari materia to 1995 Rules, this Court held, that when suitable and eligible general category candidate is available for promotion the vacancy cannot be requisitioned to the Commission for making direct recruitment. 15. In the result, the writ petition is allowed. The impugned order dated 24.12.2005 is hereby quashed. The respondents are directed to pass appropriate order in the matter of promotion to the post in question in the light of discussion made above, expeditiously, preferably within a period of two months from the date of production of a certified copy of this order. However, it is made clear that this Court has not considered the question of eligibility and suitability of the petitioner for promotion to the post of Lecturer in accordance with the rules and while considering the matter of promotion in the light of the directions as above, the competent authority shall also consider the eligibility and suitability of the petitioner for the post in question by application of mind independently without being prejudiced by any observation made in this judgment on the above aspect of the matter and in accordance with law. In case, the petitioner is found suitable and eligible for promotion, he shall be entitled for all consequential benefits in accordance with law. No costs. ————