Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1246 (ALL)

VIRENDRA NATH TRIPATHI v. STATE OF U. P.

2010-04-19

ASHOK BHUSHAN, VIRENDRA SINGH

body2010
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Shri U.N. Sharma, learned Senior Advocate, assisted by Shri Neeraj Tiwari for the petitioner, Shri P.S. Baghel learned Senior Advocate for respondent No. 2 and the learned Standing Counsel. 2. Counter and rejoinder affidavits have been exchanged between the parties and with the consent of the learned counsel for the parties this writ petition is being finally decided. 3. Brief facts necessary to be noticed for deciding the writ petition are: The petitioner was appointed as Lecturer in Paediatric Department, MLN Medical College, Allahabad on 3.3.1982. He was promoted as Reader in Paediatric Department GVSM Medical College, Swarup Nagar, Kanpur Nagar. On 6.12.1996, petitioner was promoted as Professor and Head in Paediatrics Department GVSM Medical College, Kanpur Nagar. U.P. Public Service Commission, Allahabad (hereinafter called the “Commission”) issued an Advertisement No. 2 of 2007-08, advertising two posts of Principal of Medical College (Allopathic) in the State of U.P. One post was advertised under the General Category and one post in Scheduled Caste Category. Petitioner who fulfilled the qualification for the said post submitted an application and was issued an interview letter on 17.3.2008. The petitioner was interviewed on 16.5.2008 by the Commission, the result of which was not declared by the Commission, hence the petitioner filed the writ petition on 17.10.2008 praying for a writ of mandamus commanding the respondents Commission to declare the result of the interview held on 16.5.2008 for the post of Principal in State Medical Colleges in State of U.P. 4. By letter dated 23.10.2008 issued by the State Government the earlier requisition dated 19.6.2007 for 2 posts of Principal was recalled and a requisition was sent for filling 8 pots of Principal (3 GC, 2 SC. and 3 OBC). Subsequently, by letter dated 27.3.2009, State Government has recalculated the reservation and intimated to the Commission that out of 8 posts 4 are for G.C., 2 S.C. and 2 O.B.C. The selection on the aforesaid 8 posts was initiated in pursuance of the requisition. The writ petition of the petitioner was pending at the time when the process for fresh selection against 8 posts was initiated, it was pointed out to the Court hearing the matter that the vacancy which was subject matter in the writ petition has been re-advertised and the re-advertised vacancy was subject of another writ petition. The writ petition of the petitioner was pending at the time when the process for fresh selection against 8 posts was initiated, it was pointed out to the Court hearing the matter that the vacancy which was subject matter in the writ petition has been re-advertised and the re-advertised vacancy was subject of another writ petition. A statement was made by the learned counsel appearing for the Commission that for 2 posts for which the interview was held on 16.5.2008, the result shall not be declared by the Commission in pursuance of the selection proceedings dated 28.10.2009. The order of this Court dated 28.10.2009 is quoted below: “Shri P.S. Baghel, learned counsel appearing for the respondent No. 2 submits that for two posts for which interview was held on 16.5.2008, the result will not be declared in pursuance of that proceeding which are to take place today 28.10.2009 for the post of principal. List on 16.11.2009.” 5. Counter-affidavit has been filed by the State of U.P. in which stand has been taken that in the advertisement No. 2 of 2007-08 issued by the Commission one post was for the General Category Candidate and one post was reserved for S.C. candidate. It was stated that in event the result was to be declared as per above reservation there will be one excess post of General Category. An objection was raised in that regard by the Commission vide its letter dated 3.10.2008, stating that at the time of requisition both the vacant posts were to be reserved for S.C. category, hence the requisition was erroneous. The Commission requested that in view of the above error the requisition be withdrawn and fresh requisition be sent. Acting on the letter of the Commission dated 3.10.2008, the State Government issued an order dated 23.10.2008 withdrawing the earlier requisition dated 19.6.2007 and sending fresh requisition for filling up the 8 posts of Principal. 6. Counter-affidavit has also been filed by the Commission taking the same stand referring to its letter dated 3.10.2008, that the two posts advertised vide Advertisement No. 2 of 2007-08ought to have been reserved for the S.C. category and there was no posts available for the General Category candidate. 7. 6. Counter-affidavit has also been filed by the Commission taking the same stand referring to its letter dated 3.10.2008, that the two posts advertised vide Advertisement No. 2 of 2007-08ought to have been reserved for the S.C. category and there was no posts available for the General Category candidate. 7. Rejoinder affidavit has been filed by the petitioner to both the above counter-affidavits stating that there were in all six posts of Principal in all Government Colleges and one post was reserved for Directorate. It has been stated that the requisition was rightly sent for one General Category candidate and one S.C. candidate. A letter dated 10.5.2007 has been sent by the State Government intimating that there were two vacancies of Principal. Counter-affidavit filed by the Commission was refuted. It was stated that one post of general category candidate is vacant, hence the result ought to have been declared. Reference was also made to Writ Petition No. 19392/2008, Dr. Nirmal Chandra Prajapati v. State of U.P. and another, and the counter-affidavit filed by the State Government therein. 8. Amendment Application has been filed by the petitioner praying for quashing the order dated 23.10.2008, passed by the State of U.P. withdrawing the requisition which was allowed on 5.10.2009. The amended reliefs in the writ petition are to the following effect : “(i) issue a writ, in the nature of mandamus commanding the respondent No. 2 to declare the result of the interview dated 16-5-2008 held for the post of Principal, State Medical Colleges in Uttar Pradesh. (ii) Pass any such other suitable order or direction as this Hon’ble Court may deem fit and proper under the circumstances of the case. (iii) Award costs of the petition to the petitioner. (iv) To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 23-10-2008 passed by respondent No. 1 (Annexure No. 7).” 9. Shri U.N. Sharma, learned Senior Advocate, appearing for the petitioner in support of the writ petition submitted that the service condition of the petitioner as well as the selection on the post of Principal is governed by the rules namely, U.P. State Medical Colleges Teachers Service Rules, 1990. Shri U.N. Sharma, learned Senior Advocate, appearing for the petitioner in support of the writ petition submitted that the service condition of the petitioner as well as the selection on the post of Principal is governed by the rules namely, U.P. State Medical Colleges Teachers Service Rules, 1990. Under Appendix A, sanctioned strength of services is provided which mentions that there were seven posts of Principal in the State Medical College in U.P. He submits that at the time when the advertisement was issued by the Commission advertising one post for General Category and one post of S.C. only 3 posts were filled up by general category candidate. The strength being 7, the reservation has to be less than 50 percent and out of 7 posts only 3 posts can be reserved for S.C. and O.B.C. and the rest of the 4 posts had to be given to General Category candidate and there was no error in the requisition sent by the State Government as well as in the advertisement. He submitted that the result of the Commission ought to have been declared immediately after the interview which is the practice of the Commission and due to uncalled for reasons and without any valid reason the Commission withheld the declaration of the result and ultimately wrote an illegal letter dated 3.10.2008, on the basis of which the State Government issued letter dated 23.10.2008 which deserves to be quashed. It is submitted that the eligibility for appearing on the post of Principal being 55 years and the petitioner in the year 2008, was running 54 years could not be eligible for subsequent recruitment, hence he was entitled for declaration of the result. 10. Learned Standing Counsel as well as Shri P.S. Baghel appearing for the Commission refuting the submission of the petitioner submitted that when Writ Petition No. 19392/2008 was filed by Dr. 10. Learned Standing Counsel as well as Shri P.S. Baghel appearing for the Commission refuting the submission of the petitioner submitted that when Writ Petition No. 19392/2008 was filed by Dr. Nirmal Chandra Prajapati challenging the advertisement in question on the ground that reservation provided is not in accordance with the roster issued under the Uttar Pradesh Public Services (Reservation for Scheduled Caste) Act, 1994 (hereinafter called the “Act 1994”), a stand was taken by the State Government that according to the roster system out of 6 posts of Principal, 2 posts ought to have been reserved for S.C., hence both the posts which were vacant at the time of advertisement No. 2 of 2007-08 ought to have been filed up by the S.C. candidate. 11. It is submitted that due to the aforesaid reason letter was written by the Commission on 3.10.2008, praying for cancellation of the requisition on the ground that no posts were available for General Category candidate and acting on such letter dated 3.10.2008, State Government issued letter dated 23.10.2008. It is contended that according to the roster system out of 6 posts of Principal, 2 vacancies were reserved for S.C. at the relevant time three posts were already filled up by General Category candidate and one posts for Other Backward Class and there was no posts available for General Category candidate. 12. We have heard, learned counsel for the parties and have perused the record. 13. From the submission of the learned counsel for the parties and pleadings on record following issues arise for consideration: (1) Whether the advertisement issued by the Commission being No. 2/2007-08 dated 11-17 August, 2007 advertising 1 post for General Category candidate and 1 post reserved for S.C. was in accordance with the 1994, Act and the roster issued thereunder. (2) Whether at the time when requisition was sent by the State Government on 19.6.2007, as well as at the time when advertisement was issued on 11-17 August, 2007, 2 vacant posts of Principal were required to be filed up only by S.C. Category candidate or there was 1 post available for the General Category candidate. (3) Whether the order dated 23.10.2008, cancelling the requisition dated 19.6.2007 on the ground the both the posts advertised on 11-17 August, 2007 were to be filled up by S.C. Candidate is valid or not. 14. (3) Whether the order dated 23.10.2008, cancelling the requisition dated 19.6.2007 on the ground the both the posts advertised on 11-17 August, 2007 were to be filled up by S.C. Candidate is valid or not. 14. All the aforesaid issues being interconnected are being taken up together. The selection on the post of Principal (Allopathic) Medical Colleges is governed by the aforesaid 1990 rules. 15. Rule 4 of the Rules provides for cadre of service. 16. Rule 4 sub-rule 2 provides for strength of service of each category of posts. The strength of service of each category of posts shall, until orders varying the same are passed under sub-rule 1 as given in Appendix -A. Rule 4 and relevant portion of Appendix A is quoted below: “4. Cadre of service.—(1) The strength of the service and of each category of posts therein shall be such as may be determined by the Governor from time to time. (2) The strength of service of each category of posts shall, until orders varying the same are passed under sub-rule 1 as given in Appendix ‘A’: Provided that- (i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby enlisting any person to compensation; (ii) The Governor may create such additional permanent or temporary posts as he may consider proper.” “Appendix ‘A’ (See Rule 4) Sanctioned strength of service Department / Principal Professor Associate Assistant Professor Cadre Professor Perm.Temp Perm.Temp Perm.Temp Perm.Temp Perm.Temp Total Total Total Total 1 2 3 4 5 6 7 8 9 10 11 12 13 1. Anatomy.. 8 10 3 13 27 2...... ....... ....... 25..... Principal .....7 .....7 17. One of the issues between the parties is with regard to the number of posts of Principal. Petitioner’s categorical case in the writ petition is that at the relevant time there was 6 posts of Principal in Government Medical College and 1 posts was reserved in the Directorate for Principal, therefore, there was 7 posts at the relevant time. The above has been averred in paragraph 30 of the writ petition but there is no specific denial of the said averment in the counter-affidavit. More so, as noted above, the cadre strength as provided under Rule 4 of 1990 Rules read with Appendix A is 7. The above has been averred in paragraph 30 of the writ petition but there is no specific denial of the said averment in the counter-affidavit. More so, as noted above, the cadre strength as provided under Rule 4 of 1990 Rules read with Appendix A is 7. Total strength being 7, the calculation of the reservation has to be according to number of posts in the cadre. 18. In the pleading of the parties reference of writ petition No. 19392/2008, Dr. Nirmal Chandra Prajapati v. State of U.P. and others, has been made by both the parties, hence it is relevant to refer to the said writ petition. The above writ petition was filed praying for quashing the advertisement No. 2/2007-08 dated 11-17 August, 2007. The case of Dr. Prajapati was that 3 posts of General Category were filled up and advertisement of one further post of General Category was violation of reservation policy/ roster system which shall exceed 50 percent. It was pleaded that the requisition ought to have been sent for 1 post of Other Backward Class candidate. Counter-affidavit was filed in the said writ petition by the State Government. The pleadings made by the State Government in the said writ petition has been relied on by both the State of Uttar Pradesh and by the Commission for their specific action, hence it is relevant to refer to the said pleadings. In paragraphs 10 and 16 of the counter-affidavit in writ petition 19392/2008, following was stated by the State of U.P. “10. That the contents of paragraphs 10 and 11 of the writ petition are not correct in the manner as they are stated. However, in is reply, it is further respectfully submitted that there are 6 posts of Principals. Out of 6 posts of Principals, 3 posts are unreserved for General Category, 1 post for Backward Category and 2 for Scheduled Caste Category candidates. It is respectfully submitted that at present three posts of Principals are already filed up by unreserved (General Category) candidates. The unreserved (General Category) candidates who are working as Principals are as under: 1. Dr. Kamal Sahni-Presently working as Director, J.K. Cancer Institute, Kanpur. 2. Dr. P.S. Saxena-Presently posted as Principal, M.L.N. Medical College, Allahabad. 3. Dr.Deoki Nandan-Present posted on deputation on the post of Director, Medical Health and Family Welfare. Dr. Deoki Nandan is posted on lien. 16. The unreserved (General Category) candidates who are working as Principals are as under: 1. Dr. Kamal Sahni-Presently working as Director, J.K. Cancer Institute, Kanpur. 2. Dr. P.S. Saxena-Presently posted as Principal, M.L.N. Medical College, Allahabad. 3. Dr.Deoki Nandan-Present posted on deputation on the post of Director, Medical Health and Family Welfare. Dr. Deoki Nandan is posted on lien. 16. That in reply to the contents of paragraphs 19, 20, 21 and 22 of the writ petition, it is respectfully submitted that requisition has been sent in pursuance of the roster of recruitment issued by the State Government. there is no illegality made by the respondent No. 1. The requisition sent by the respondent No. 1 is in accordance with the Roster of recruitment dated 22.10.2001. The petitioner has not stated the correct facts before this Hon’ble Court the present writ petition and at relevant point of time, the O.B.C. vacancy became available when Dr. S.K. Katiyar has been retired after attaining the age of superannuation on 29.2.2008 whereas the requisition was sent much earlier. The requisition for vacancy of the Principal of O.B.C. will be sent by respondent No. 1 very shortly.” 19. From the perusal of the aforesaid pleadings it is clear that both the State and the Commission took the stand that no posts for the O.B.C. category was available at the time of requisition. The State of U.P. further in paragraph 16 has defended its requisition and stated that the requisition sent by the State of U.P. is in accordance with the roster of recruitment dated 22.10.2001. The writ petition of Dr. N.C. Prajapati (supra) was dismissed by a Division Bench on 28.8.2008 and this Court found that Dr. N.C. Prajati is not eligible for the post, hence the issue raised in Dr. N.C. Prajati’s case that one post will fall in General Category or in O.B.C. Class need not be gone into. Following was stated in paragraph 14 of the judgement which is quoted below: “14. Since the petitioner is not eligible for the post, we are not inclined to consider the prayer made in writ petition No. 19819 of 2008, to consider whether one of the posts will fall in general category or in Other Backward Class. The writ petition No. 19385 of 2008 is reported to be dismissed on 5.8.2008.” 20. Since the petitioner is not eligible for the post, we are not inclined to consider the prayer made in writ petition No. 19819 of 2008, to consider whether one of the posts will fall in general category or in Other Backward Class. The writ petition No. 19385 of 2008 is reported to be dismissed on 5.8.2008.” 20. From the pleadings of the parties, it is clear that the Director, Medical Education had actually sent requisition for one post on 12.2.2007 to the State Government. The State Government wrote a letter on 10.5.2007 which is filed as Annexure-8 to the writ petition that 2 posts of Principal are vacant. Due to repatriation of one Dr. Saudan Singh in his parent department and on posting of another Principal of Dr. Kamal Sahni on the post of Director General, hence the requisition for 2 posts in accordance with roster be made available to the State Government. The Director General in pursuance of the letter of the State Government made available the requisition for 2 posts which was sent by the State Government by letter dated 19.6.2007. In the requisition sent on 19.6.2007, 1 post was reserved for S.C. Candidate and 1 post for General Category. In pursuance of the requisition dated 19.6.2007, advertisement has been issued by the Commission on 11-17th August, 2007, advertising 1 post of General Category and 1 post for reserved category. In pursuance of the advertisement selection took place and selection was held on 16.5.2008. The result of which was withheld by the Commission and not declared. A letter dated 3.10.2008 was sent by the Commission to the State Government informing that in pursuance of the advertisement selection has been held on 16.5.2008, in writ petition No. 19392/2008, the counter-affidavit has been filed by the State Government and it was mentioned that according to the roster system out of 6 posts, 3 posts are unreserved for General Category, 1 post of O.B.C. and 2 post of S.C. category. It was further stated in the letter that at the time of requisition, 3 persons of General Category, 1 of O.B.C. were working, hence both the posts vacant were to be reserved for S.C. candidate. It was further stated in the letter that at the time of requisition, 3 persons of General Category, 1 of O.B.C. were working, hence both the posts vacant were to be reserved for S.C. candidate. The Commission stated that the requisition was erroneous and if the result is declared, 1 post of General Category shall be in excess, hence the State may clarify the position so that the Commission may take appropriate steps in that regard. In response to the said letter the State Government has subsequently on 23.10.2008, withdrawn the earlier requisition on 19.6.2008 and directed for filling of 8 posts as noted above. The stand of the State Government as well as the reason for withdrawing the earlier requisition dated 19.6.2008 has been very categorically stated in paragraph 8 of the counter-affidavit filed in this writ petition. It is useful to quote paragraph 8 of the counter-affidavit of the State Government which is to the following effect: “8. The stand of the State Government as well as the reason for withdrawing the earlier requisition dated 19.6.2008 has been very categorically stated in paragraph 8 of the counter-affidavit filed in this writ petition. It is useful to quote paragraph 8 of the counter-affidavit of the State Government which is to the following effect: “8. That in reply to the contents of paragraphs 8 to 10 of the affidavit, it is most respectfully submitted that in pursuance of the affidavit filed in writ petition No. 19392 of 2008, the U.P. Public Service Commission vide its letter dated 7.5.2008 has made necessary amendment in the earlier letter dated 19.6.2008 by which it has been made clear that pursuant to the letter of the State Government Dated 19.6.2007, a notification of selection was published by the Commission in which out of two post of principal in Government Medical Colleges (Allopathic), one post was reserved for general and another post was reserved for S.C. Candidates which was illegal and wrong as the aforesaid post was not meant for general category rather it should have been notified for S.C. Candidate and as such if the result of the selection is declared then in that event of the matter there will be one excess post of general category and the same will not be sustainable in the eyes of law and accordingly, an objection in this regard was raised by the U.P. Public Service Commission vide its letter Dated 3.10.2008 and in pursuance of the same, the State Government vide its letter Dated 23.10.2008 has amended its earlier letter Dated 19.6.2008 by which against the 8 post of Principal, three post was reserved for general category, two posts was reserved for S.C. Candidates and three post was reserved for O.B.C. Candidates and in pursuance of the said letter Dated 23.10.2008, the Commission has again raised an objection to the effect that reservation quota should not be exceeded more than 50% and in pursuance of the same, the State Government vide its letter Dated 27.3.2009 has again amended its proposal of selection by which four post was reserved for general category, two posts was reserved for S.C. Candidates and two post was reserved for O.B.C. Candidates and accordingly, in view of the said amended letter Dated 27.3.2009, necessary action is being taken at the level of Commission.” 21. The controversy boils down to the issue as to whether the posts for which requisition was sent by the State Government on 19.6.2008, which were advertised on 11-17th August, 2007 by the Commission of one General Category and one of S.C. category was correct in accordance with the provisions of 1994 Act, and the roster issued thereunder or both the posts of the Principal were to be reserved for S.C. Category. The reason which has been given by the State of U.P. as well as by the Commission is that both the posts ought to have been reserved for S.C. Candidate in the advertisement dated 11-17th August, 2008, hence the declaration of the result on the post of Principal in pursuance of the advertisement dated 11-17th August, 2008 would have made 1 post of General Category in excess. As noticed above in the letter dated 3.10.2008, the Commission has calculated the percentage of vacancies in different categories on the strength of 6 posts which is apparent from the letter dated 3.10.2008 filed as Annexure-CA-1 to the counter-affidavit. According to the Commission out of 6 posts, 2 posts ought to have been given to the S.C. Candidate and that is the basis of the stand of the respondents. 22. As noticed above in the cadre of Principal as given in Appendix-A to the 1990 Rules, number of sanctioned posts is 7. Before considering the issues, it is necessary to note the relevant provisions of reservation as applicable in the State. The Uttar Pradesh Public Services (Reservation For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 has been enacted by the State Legislature to provide for reservation in public service and posts in favour of the persons belonging to the SC, ST and Other Backward Class, classes of the citizens. Section 3 of the Act provides for percentage of reservation. Section 3 of the Act provides for percentage of reservation. Section 3(1) of the Act is quoted below: “3(1).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 Twenty per cent; (c) in the case of Other Backward Classes of citizens Twenty- seven one 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;” 23. Section 3 (5) of the Act empowers the State Government to issue a roster by notifying the order for applying the reservation. A roster has been issued by the State Government in exercise of powers under Section 3 (5) and according to the said roster dated 22.10.2001, following are the points for reservation. It is relevant to note the roster points from 1 to 7. “1& vuqlwfpr tkfr 2& vukjf{kr 3& vU; fiNM+k oxZ 4& vukjf{kr 5& vuqlwfpr tkfr 6& vukjf{kr 7& vU; fiNM+k oxZ“ 24. The State Government as well as the Commission has come to the conclusion that both the posts which were advertised on 11-17 August, 2008 shall be reserved for S.C. and the calculation has been made on basis treating the number of posts as six. Let us examine how many posts shall be reserved for S.C. in case the number of posts is treated to be 6. The percentage of reservation as provided under the 3(1) of the 1994 Act is 21% . 21% of 6 posts shall be 1.26. The fraction of less than half has to be ignored while computing the number of posts to be reserved, which is a well settled proposition of law. The percentage of reservation as provided under the 3(1) of the 1994 Act is 21% . 21% of 6 posts shall be 1.26. The fraction of less than half has to be ignored while computing the number of posts to be reserved, which is a well settled proposition of law. In event 2 posts are reserved for S.C. out of 6 posts, the reservation shall be 33 % for S.C. which is impermissible. If we treat the number of posts as 7 as is the sanctioned strength the 21% of 7 will also be 1.47 according to which also only 1 post will be reserved for S.C. According to the roster point as prescribed by notified order under Section 3(5) of the Act, out of 6 posts 2 posts fall in the quota of S.C., thus there is an apparent conflict in the substantive provision i.e. 3(1) and the roster point as prescribed by the notified order under Section 3 (5). Whether the reservation will be calculated on the basis of roster point or according to the percentage as prescribed under Section 3(1) is the issue to be resolved. 25. The Apex Court in State of U.P. and another v. Pawan Kumar Tiwari and others, 2005 (2) SCC 10 , had an occasion to consider the 1994, Act. The advertisement of 93 posts of Civil Judge Junior Division was made by the Commission. 46 posts were reserved for G.C., 20 posts for S.C., 26 posts for O.B.C. and 1 post for S.T. Out of 93 posts 50% is 46.5. Whether the General Candidate should have given 47 posts instead of 46 and the reserved category should have been given 46 posts actually came up for consideration. The Apex Court in the said case considered the applicability of 1994 Act and laid down that 47 posts could not have been reserved. The reservation under the 1994, Act thus cannot exceed 50%. Following was laid down in paragraphs 1, 2 and 9 of the said judgment which is quoted below: “1. In the year 1997 the State Public Service Commission, pursuant to the requisition made by the State Government on the advice of the High Court of Uttar Pradesh, advertised 93 posts of Civil Judge (Junior Division) in the Uttar Pradesh Judicial Service. In the year 1997 the State Public Service Commission, pursuant to the requisition made by the State Government on the advice of the High Court of Uttar Pradesh, advertised 93 posts of Civil Judge (Junior Division) in the Uttar Pradesh Judicial Service. Keeping in view the provision for reservation mandated by the U.P. Public Service (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Serviceman) Act, 1993 and U.P. Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, certain posts were reserved. To the extent of the percentage, of reservation, as contemplated by the two Acts, mentioned above, there is no controversy. The controversy centres around the application of percentage as against the total number of posts. 2. The percentages of reservation, as applicable and as was actually, applied, are set out in the following table : Category Percentage Percentage worked Number of (prescribed) out to Posts reserved General 50% 46.50 46 Scheduled 21% 19.53 20 Castes Other 27% 25.11 26 Backward Classes Scheduled 2% 1.86 1 Tribes 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.” 26. Again the Supreme Court in R.S. Garg v. The State of U.P. and others, 2006(6) SCC 430 , considered the provisions of 1994, Act. In R.S. Garg’s case (supra) there were 6 posts of Deputy Director of Factories in State of U.P. One of the issue which was considered by the Apex Court is as to whether the reservation for S.C. which was 2 out of 6 posts was in accordance with the 1994, Act. In paragraph 6 (v) the said issue was specifically considered which is quoted below: “6. The said writ petition had been dismissed by the impugned judgment. The contentions raised before the High Court as also before us, on behalf of the appellant are: (i) ........................ (ii) .................... (iii) ........................... (iv) ................................ In paragraph 6 (v) the said issue was specifically considered which is quoted below: “6. The said writ petition had been dismissed by the impugned judgment. The contentions raised before the High Court as also before us, on behalf of the appellant are: (i) ........................ (ii) .................... (iii) ........................... (iv) ................................ (v) Reservation to the post in favour of a Scheduled Caste was illegal and unjust by reason thereof the percentage of reservation in promotion would be raised from 21% to 33%. (vi) ........................................” 27. The Apex Court in the said judgment held that if there were 6 posts and the roster was to be followed according to 1994, Act, there shall be 2 posts as per the roster point, but the same shall be more than 21% and shall be clearly impermissible. In paragraphs 34 and 40 following was laid down: “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 Scheduled Tribe (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 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.” 28. The judgment of the Apex Court in R.S. Garg’s case (supra) is squarely applicable in the present case, in the said case it was also held that out of 6 posts 2 posts cannot be reserved for S.C. since reserving 2 posts for S.C. out of 6 posts the percentage of 21% shall be exceeded which is not permissible. 29. The judgment of the Apex Court in R.S. Garg’s case (supra) is squarely applicable in the present case, in the said case it was also held that out of 6 posts 2 posts cannot be reserved for S.C. since reserving 2 posts for S.C. out of 6 posts the percentage of 21% shall be exceeded which is not permissible. 29. A Division Bench of this Court had also an occasion to consider the issue on the applicability of reservation under 1994, Act and the roster point in Vishwajeet Singh (Dr.) and others v. State of U.P. and others, 2009(4) ADJ 373 : 2009(2) ESC 1387, the Division Bench of which one of us (Hon’ble Ashok Bhushan,J was member) laid down that the roster point as notified by the State Government under Section 3(5) have been issued to give effect to the percentage of reservation under Section 3(1) and the roster point shall always be subservient to the substantive provisions of the reservation. It was held that the reservation as provided under Section 3(1) is a substantive provision and the roster point provided under Section 3(5) cannot be contrary to the substantive provision as given in 3(1). Following was laid down in paragraph 74 which is quoted below: “74. The answer to the above issue has to be found out in the provisions of 1994 Act, which has been enacted to provide reservation in Public Services and Posts in favour of Scheduled Castes, Scheduled Tribes, Other Backward Class citizens. Section 3 (1) mandates that “there shall be reserved at the stage of direct recruitment, the following percentage of vacancies...”Different percentage of vacancies for Backward class have been mentioned in sub-section (1) of Section 3. The sub-section (1) next mentions that “..recruitment are to be made in accordance with the roster referred to in sub-section (5). Sub-section (5) of Section 3 provides that “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....” Thus, the roster issued under sub-section (5) is for applying the reservation under sub-section (1). Sub-section (5) of Section 3 provides that “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....” Thus, the roster issued under sub-section (5) is for applying the reservation under sub-section (1). A reading of provisions of Section 3 makes it clear that object and purpose of the provisions is to provide reservation percentage for the vacancies of Backward Classes, which can be said to be substantive provision and the roster issued under sub-section (5) is the object to achieve the main purpose of the Act. Roster thus has to be subserve and is to comply the percentage of reservation as mentioned in sub-section (1) of Section 3 i.e. 21% for Scheduled Castes, 2% Scheduled Tribes and 27% for Other Backward Classes. There is maximum ceiling of total reservation, which may be provided under Article 16 (4) of the Constitution of India i.e. 50% is the ceiling for total reservation under Article 16 (4) of the Constitution of India. It goes without saying that different percentage for different classes have been prescribed. The reservation has to remain both within the percentage as prescribed under sub-section (1) of Section 3 as well as 50% ceiling has now been laid down by the Constitution Bench judgment of this Court in Indra Sawahney case (supra). For illustrating further, if we take an example of two posts cadre (In Annexure-3 to the counter-affidavit, there are several subjects which have only two sanctioned posts), the details of Deonagari Mahavidyalaya, Meerut mentions at Item No. 1 (five) posts of statistics, which has only two sanctioned posts in Raghunath Girls Inter College, Meerut at Item No. 32, the subject of Geography has only two sanctioned posts. Whether out of two posts, one post can be reserved either for Scheduled Casts or Other Backward Class, is the question to be answered. The notification issued by the State Government in exercise of power under sub-section (5) of Section 3 provides following roster which is 100 points roster. The first ten points at this stage which are as as follows: “1. Scheduled Castes. 2. Unreserved. 3. Other Backward Class 4. Unreserved. 5. Scheduled Castes. 6. Unreserved. 7. Other Backward Class 8. Unreserved. 9. Other Backward Class 10. Unreserved.” 30. The first ten points at this stage which are as as follows: “1. Scheduled Castes. 2. Unreserved. 3. Other Backward Class 4. Unreserved. 5. Scheduled Castes. 6. Unreserved. 7. Other Backward Class 8. Unreserved. 9. Other Backward Class 10. Unreserved.” 30. Now the decisions cited by the learned counsel for the U.P. Public Service Commission need to be noticed. The first decision on which reliance has been placed is judgment of the Apex Court in AIR 1992 SC 749 ; Dr. P.K. Jaiswal v. M/s Debi Mukherjee and others. In the said case a requisition was sent to the Union Public Service Commission in November, 1989 for selection of a candidate for filling in the vacancy of Assistant Director General, however, before the Commission could advertise the post, the Union Government informed the Commission by letter dated 29th December, 1989 received by the Commission on 1st January, 1990 that selection be not proceeded because the Government is examining the question of opening up an avenue for promotion from Assistant Secretary to the post in question. The Commission, however, advertised the post in January, 1990. The appellant applied and was called for interview on 13th December, 1990. At that stage, the respondent, who was hoping to be promoted, approached the Central Administrative Tribunal and obtained an interim order staying the process of selection. The Tribunal disposed of the petition with the direction to the concerned Ministry to provide promotional avenues. The said order was challenged in the Apex Court. It was contended that once the process of selection had started, it was not open for the Government as well as the Tribunal to freeze the process and the Commission was entitled to complete the selection. In paragraph 5 to the judgment, referring the earlier two judgments of the Apex Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission, (1990)3 SCC 157 and Jitender Kumar v. State of Punjab, AIR 1984 SC 1850 , following was laid down in paragraph 5 of the said judgment : “5. ..... In paragraph 5 to the judgment, referring the earlier two judgments of the Apex Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission, (1990)3 SCC 157 and Jitender Kumar v. State of Punjab, AIR 1984 SC 1850 , following was laid down in paragraph 5 of the said judgment : “5. ..... It is obvious from the ratio of these two decisions to which our attention was pointedly drawn that if the Commission issues an advertisement at the behest of the Government and pursuant thereto calls a candidate for interview, the candidate has a right to be considered for selection but not a right to be selected or to appointment to the post in question. The right to selection crystallises only after the candidate is called for interview pursuant to the advertisement. But in the instant case the question is whether the Government can withdraw the requisition sent to the Commission for initiating the process of selection because at that point of time no right had crystallised in anyone for being considered for selection. If the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to the post in question, the Government can before an advertisement is issued by the Commission and the process of selection is under way request the Commission to withdraw the same till it decides on the question of amending the rules. The decision of the Government to withdraw the requisition sent to the Commission in November 1989 before the issuance of the advertisement does not interfere with any vested right of selection because that stage had yet not reached. In the instant case, that is exactly what happened. Therefore, before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question. In the instant case, that is exactly what happened. Therefore, before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question. Once this decision was communicated to the Commission before it had set the process of selection in motion by issuing an advertisement, it was not open to the Commission to insist that it will go ahead with the selection process as the extant rule provided for promotion by direct recruitment and the Government could amend the recruitment rules retrospectively, if it so desired with a view to providing for appointment by promotion. Such an exercise by the Commission would be an exercise in futility, waste of public time and money and hardship to candidates who seek appointment. Whether to provide for promotion as a mode of appointment to the post in question is a matter of policy left to the Government to decide and if it desired that the selection process should be held in abeyance till the question was examined and a final decision was taken thereon, it was not open to the Commission to ignore the communication of the Government in that behalf and proceed to set the selection process in motion. We think the action of the Commission was somewhat hasty and unjustified. The appellant, therefore, cannot claim any vested right as urged by his learned counsel. Nor can the Tribunal’s omission to notice that two new layers were created have a bearing on the Government’s decision to place the process of selection in hibernation till a final decision is taken on the proposal to provide for promotion to the post.” 31. The said judgment is not applicable in the present case since here the Government decision to withdraw the requisition was taken on 23rd October, 2008 whereas the advertisement was issued on 11-17th August, 2007 and the interview was held on 16th May, 2008. 32. The second case relied by learned counsel for the Commission is in the case of Shankarsan Dash v. Union of India, AIR 1991 SC 1612 . In the said case the Apex Court laid down that inclusion of name of a candidate in the merit list does not confer any right to be selected. 32. The second case relied by learned counsel for the Commission is in the case of Shankarsan Dash v. Union of India, AIR 1991 SC 1612 . In the said case the Apex Court laid down that inclusion of name of a candidate in the merit list does not confer any right to be selected. Following was laid down in paragraph 7 of the said judgment : “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 : ( AIR 1973 SC 2216 ), Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : ( AIR 1987 SC 169 ), or Jitendra Kumar v. State of Punjab, (1985) 1SCR 899 : ( AIR 1984 SC 1850 ). 33. There cannot be any dispute to the proposition that inclusion of name in the select list does not confer any indefeasible right to be appointed. However, the decision not to fill up the vacancy has to be taken bona fidely for appropriate reason. The present is a case where requisition has been withdrawn by incorrectly applying the rules of reservation under the 1994 Act. 34. The next case relied by learned counsel for the Commission is in the case of Dr. M.C. Bindal v. The U.P. Public Service Commission, Allahabad and another, AIR 1989 SC 134 . The present is a case where requisition has been withdrawn by incorrectly applying the rules of reservation under the 1994 Act. 34. The next case relied by learned counsel for the Commission is in the case of Dr. M.C. Bindal v. The U.P. Public Service Commission, Allahabad and another, AIR 1989 SC 134 . In the said case the Apex Court laid down that Commission was entitled to withdraw the recommendation after being satisfied that candidate does not fulfil the requisite experience. The appointment made by the Government on the basis of earlier recommendation cannot be said to be correct. Following was laid down in paragraph 12 of the said judgment : “12. In the instant case, the advertisement for the post was made at the instance of the U. P. Public Service Commission and the requisite qualification for the post had been specified in the advertisement. It is therefore, essential that a candidate in order to be considered for appointment for the said post must have to comply with the requisite qualification namely the educational qualification as well as the experience in drug testing etc. for a period of five years. If any of these essential qualifications is lacking then the candidate cannot claim to be appointed in the said post. Undoubtedly, it is the Public Service Commission who has to receive the applications of the candidates and has to scrutinise them and then to decide which of the applicants have got the requisite qualifications and so be called for interview. It is the duty of the Commission with the help of experts in the particular subject to hold interview and, to find out and select the candidates having the requisite qualifications and experience fit to be recommended to the Government for appointment to the said post of Food and Drug Controller. Therefore, under Article 320(3)(a) and (b), it is the duty of Public Service Commission to consider and to get itself satisfied as to which of the candidates has fulfilled the requisite qualifications specified in the advertisement. The Commission in this. particular case has duly got verified the certificates of the Dr. Therefore, under Article 320(3)(a) and (b), it is the duty of Public Service Commission to consider and to get itself satisfied as to which of the candidates has fulfilled the requisite qualifications specified in the advertisement. The Commission in this. particular case has duly got verified the certificates of the Dr. Bindal in regard to his experience of five years in drug testing by a Deputy Secretary of the Commission and after considering his report as well as the certificates came to the conclusion that the appellant though fulfilled educational qualifications, lacked in the requisite experience of five years in drug testing. The Commission, therefore, revised its earlier decision and withdrew the candidature of the appellant and also cancelled its recommendation earlier given in favour of the appellant. This decision of the Public Service Commission, in our considered opinion cannot be faulted. It is the constitutional requirement envisaged in Article 320 that the Commission will have to perform the duty of recommending the candidate fulfilling all the requisite qualifications for the post to the Government for being considered for appointment to the post concerned. It is, of course, a well settled legal position that the duty to consult the Commission in the matter of appointment to civil posts by the Government is not mandatory but directory and as such the absence of consultation with the State Public Service Commission does not render any appointment made by the Government in Civil posts invalid or illegal. It cannot also be contended that since the duty to consult the Public Service Commission in the matter of making appointments to Civil Services of the State is directory and not mandatory, the appointment of Dr. Bindal as Food and Drug Controller, U. P. by the Government of Uttar Pradesh cannot be questioned or interfered in by the Court inasmuch as the candidature of the appellant, Dr. Bindal for the post in question has already been withdrawn by the Public Service Commission and as such the question of validity or invalidity of the appointment of the appellant, Dr.. Bindal to the said post is no longer open to be considered by the Court.” 35. The last decision relied by learned counsel for the Commission is in the case of J & K Public Service Commission and others v. Dr. Narinder Mohan and others, (1994)2 SCC 630 . Bindal to the said post is no longer open to be considered by the Court.” 35. The last decision relied by learned counsel for the Commission is in the case of J & K Public Service Commission and others v. Dr. Narinder Mohan and others, (1994)2 SCC 630 . In the said case the Apex Court laid down that process for selection of recruitment against existing and anticipated vacancy does not create a right to appointment. The Government has power to decide the number of post, which is to be filled up. There cannot be any dispute to the above proposition. Here there is no dispute that two vacancies were existing when the advertisement was issued being Advertisement No. 2/07-08. The question in the present case is whether both the posts should have been advertised for reserve category candidate and fall for reserve category candidate or not. Thus the said case has no application in the present case. 36. In view of the foregoing it is clear that 2 posts which were vacant at the time when the requisition was sent on 19.6.2008 as well as on 11-17th August, 2008, when the advertisement was issued could not have been reserved for S.C. One post was rightly reserved for S.C. and the other post for General Category candidate. Thus, the stand taken by the respondents that both the posts ought to have been reserved for S.C. due to which fact the result was not declared is contrary to the law as laid down by the Supreme Court as noticed above. 37. Interview was held on 16.5.2008 the result of which was to be declared immediately thereafter, but labouring under misconception of law the Commission wrote to the State Government that both the posts should have been reserved for S.C. The action of the Commission in writing the letter dated 3.10.2008 is not supported by law. The State Government also committed error in issuing the order dated 23.10.2008 withdrawing the requisitionacting on the letter dated 3.10.2008 of Commission. The petitioner who had applied against the 1 post of General Category and was interviewed deserves a direction from this Court for the declaration of the result of the selection held on 16.5.2008 insofar as, the General Category candidate is concerned, as noticed above. The petitioner who had applied against the 1 post of General Category and was interviewed deserves a direction from this Court for the declaration of the result of the selection held on 16.5.2008 insofar as, the General Category candidate is concerned, as noticed above. In the subsequent selection which was held on 28.10.2009, including the 2 earlier posts this Court has already noticed the statement of Counsel for the Commission that the result of 2 posts for which the selection was held on 16.5.2008 shall not be declared. 38. In view of the foregoing, the petitioner is entitled for the relief. 39. The writ petition is allowed with the following directions: (I) the order dated 23.10.2008, issued by the State is hereby quashed insofar as it withdraws the earlier requisition dated 19.6.2007. (II) A mandamus is issued to the respondent No. 2 to declare the result of the interview held on 16.5.2008, for the post of Principal insofar as General category is concerned. (III) The State of U.P. may take consequential action thereafter. 40. Parties shall bear their own costs. ————