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2010 DIGILAW 1736 (ALL)

Virendra Singh v. State of U. P. and Others

2010-05-24

SYED NAZIM HUSAIN ZAIDI, UMA NATH SINGH

body2010
(Delivered by Hon’ble Uma Nath Singh, J)—Affidavit on behalf of State to crave leave of Court for holding D.P.C for promotion to the post of Members of Commercial Tax Tribunal and also the Office Memo (Sang.Vi.Kaa.Ni-1-CM-82/11-2010-1035(20)/10)dated 28.4.2010 passed by the Principal Secretary Shri D.S. Misra, both filed in Court, are taken on record.2. This writ petition has been filed with prayers to seek issuance of (i) a writ, order or direction in the nature of certiorari for quashment of the impugned order dated 5.4.2010 passed by Principal Secretary, Institutional Finance, Tax & Registration (opposite party no.1) and the impugned order dated 19.03.2010 (Annexure Nos.1 & 2 herein); (ii) a writ, order or direction in the nature of mandamus directing the Principal Secretary and Commissioner, Commercial Tax (opposite party nos. 1 & 2) to make promotion against 15 available vacancies of Additional Commissioner (Grade-I), Commercial Tax, in the recruitment year 2010 by earmarking at least 3 posts for Scheduled Caste category on the basis of eligibility list while ignoring the impugned order dated 5.4.2010 passed by Principal Secretary; (iii) a writ, order or direction in the nature of mandamus directing Principal Secretary and Commissioner(Opposite Party Nos. 1 and 2) to consider the petitioner for promotion to the post of Additional Commissioner (Grade-I), Commercial Tax, ignoring the orders dated 05.04.2010 and 19.03.2010, and writ, order or directions of general nature including award of costs etc. in the circumstances of the case.3. A brief factual background of this case leading to filing of writ petition is that the Petitioner who belongs to Scheduled Caste category was initially appointed on the post of Sales Tax Officer on 09.12.1980. He was promoted to the post of Assistant Commissioner, Sales Tax on 26.08.1996 and further to the post of Joint Commissioner, Trade Tax (now known as Commercial Tax) on 21.06.2005. He was further promoted to the post of Additional Commissioner (Grade-II), Commercial Tax vide Govt. Order dated 13.10.2008. His work and conduct are said to have been assessed excellent and entirely to the satisfaction of higher authorities. The petitioner also claimed to have possessed an unblemished record with no adverse entry till date. Service conditions of the petitioner are governed by the U.P Trade Tax Service Rules, 1983 (for short ‘the Service Rules, 1983’) which were lastly amended in the year 2009. The petitioner also claimed to have possessed an unblemished record with no adverse entry till date. Service conditions of the petitioner are governed by the U.P Trade Tax Service Rules, 1983 (for short ‘the Service Rules, 1983’) which were lastly amended in the year 2009. Rule 4(2) of the Service Rules, 1983 provides the total strength of posts of Additional Commissioner (Grade-I) which were lastly revised on 10.06.2008 increasing the same from 12 to 21. Vide Rule 5(e) of the Service Rules, 1983, source of recruitment on the post of Additional Commissioner (Grade-I) is promotion through Selection Committee from amongst the suitable candidates substantively appointed as Additional Commissioner, Trade Tax (now Commercial Tax) (Grade-II) who have completed a minimum service period of one year on the first day of recruitment. The Rule also provided that if sufficient number of candidates were not made available in the feeder cadre, then the field of eligibility may be extended to include substantively appointed Additional Commissioner (Grade-II) who have completed only six months of service on the first day of recruitment year. Rule 17(1) of the Service Rules, 1983, provides that the promotion to the post of Additional Commissioner (Grade-I) shall be made on the basis of criterion laid down in the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994 (for short ‘the Promotion Rules, 1994’) . The Promotion Rules, 1994, provides for recruitment on the basis of merit. Rule 17(1) of the Service Rules, 1983, provides for promotion to the post of Additional Commissioner (Grade-I) on the basis of merit through a Selection Committee constituted in accordance with the provisions of the U.P. Constitution of Departmental Promotion Committee for posts outside the purview of the Service Commission Rules, 1992 (for short ‘the DPC Rules, 1992). According to Rule 17(2) of the Service Rules, 1983, the appointing authority is to prepare three eligibility lists for three categories of candidates namely (i) General category; (ii) Scheduled Castes, and (iii) Scheduled Tribes containing the names of eligible candidates for promotion to the next higher post on the basis of seniority as per the provisions of U.P. Promotion by Selection (on posts outside the purview of the Public Service Commission) Eligibility List Rules, 1986 (for short ‘the Eligibility Rules, 1986). Vide Rule 4 of the Eligibility Rules, 1986, the appointing authority has to prepare eligibility lists containing the names of the eligible candidates for promotion in accordance with the seniority and as far as possible three times of the number of vacancies. Thus, the eligibility list for promotion to the post of Additional Commissioner (Grade-I) is to be prepared from amongst the eligible candidates working on the post of Additional Commissioner (Grade-II) on the basis of their inter se seniority which was lastly determined on 03.09.2008, and a tentative seniority list issued and circulated by the Principal Secretary. As of now, out of 21 duly sanctioned posts of Additional Commissioner (Grade-I), Commercial Tax, 15 posts are to fall vacant in the recruitment year 2009-10. Out of 6 filled up posts of Additional Commissioner (Grade-I), Commercial Tax, 4 posts stand filled up by the persons belonging to the General category candidates and 2 posts stand filled up by the persons belonging to the Scheduled Castes/ Scheduled Tribes candidates. A proposal dated 24.02.2010 was forwarded for filling up the said 15 posts of Additional Commissioner (Grade-I), Commercial Tax. In the said proposal 11 posts were earmarked to be filled up from General category candidates and the remaining 4 posts were to be filled up from the candidates belonging to the SC/ST categories. However, the said proposal was challenged by one Padam Kumar (Opposite Party No.3) by way of Writ Petition No. 383 (SB) of 2010 (Padam Kumar v. State of U.P. and others) before this Bench of High Court. It appears that at the time of hearing of the writ petition, learned Standing counsel appearing for the State produced the impugned order dated 05.04.2010 setting aside the proposal dated 24.02.2010, and thus the said writ petition was dismissed having been rendered infructuous vide judgment and order dated 05.04.2010. It appears that the impugned order dated 05.04.2010 passed by the Government was based on the impugned order dated 19.03.2010 which was issued with reference to Members, Commercial Tax Tribunal (Departmental) having sanctioned strength of 16 posts. Therefore, the petitioner has also challenged the order dated 19.03.2010 on the ground that it is absolutely illegal, arbitrary and misconceived as the same has been passed by misinterpreting the rule of roster dated 10.10.1994 while holding that its application would lead to reservation in excess of the total sanctioned strength. Therefore, the petitioner has also challenged the order dated 19.03.2010 on the ground that it is absolutely illegal, arbitrary and misconceived as the same has been passed by misinterpreting the rule of roster dated 10.10.1994 while holding that its application would lead to reservation in excess of the total sanctioned strength. The petitioner has further averred that subsequent to the roster issued on 10.10.1994, another roster dated 25.06.2002 was also issued by the State Govt. which is now applicable in all the departments. Further according to the petitioner the roster dated 25.06.2002 clearly shows the mode of application of 100 point roster on the posts concerned. Clause 3 of the said roster dated 25.06.2002 provides that the same shall continue on year to year basis as a current account till all the categories of posts in the roster are not filled up. The post of Additional Commissioner (Grade-I), Commercial Tax as also all the promotions have been made from time to time up to roster point 80 till 21.12.2009 when the last promotion was made for the said post. According to the roster dated 25.06.2002 the next 15 posts are to be filled up on the basis of placement of General, Scheduled Castes and Scheduled Tribes candidates enumerated from serial no. 81 to 95 and thus the posts of serial nos. 81, 85 and 91 are to fall in the reserved category of Scheduled Castes as would be reflected from the seniority list of the post of Additional Commissioner (Grade-I), Commercial Tax. Hence, being aggrieved by the impugned order dated 05.04.2010, the petitioner submitted a representation on 09.04.2010 before Principal Secretary, and Commissioner, Commercial Tax, but the petitioner learnt from reliable sources that the Departmental Promotion Committee was likely to be convened on any date shortly for holding the selection for promotion to the post of Additional Commissioner (Grade-I), Commercial Tax, only on the basis of order dated 05.04.2010 and thus one post of Scheduled Castes category would go to General category on the basis of impugned order dated 05.04.2010. It is also an averment in the writ petition that while applying the roster from 1 to 21 vide the impugned order dated 05.04.2010, and 1 to 16 vide the impugned order dated 19.03.2010, the same have been passed in complete ignorance of the fact that the roster is to be applied on year to year basis till it is completely exhausted, and it reaches the 100th post. Thus the quota of reservation is to be seen and calculated on the basis of the said entire roster and not to be computed out of context. As per roster, out of 15 posts falling vacant if the reservation as given in the impugned orders is allowed to stand, then not only the post of reserved category candidates would be reduced but no post would ever be made available to a person belonging to the Scheduled Tribes candidates which is not the intention of the reservation policy of the State Government. Further according to the petitioner percentage of reservation is to be seen in its totality and not in a piecemeal manner as the same would not give the correct results. According to the petitioner there has to be a strict compliance of the provisions of the U. P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (for short ‘the Act of 1994’) as per the ratio of reservation prescribed therein namely 21 % for Scheduled Castes and 2 % for Scheduled Tribes, and any variance from the same would be de-hors the statutory prescriptions. Even a fraction of quota of reservation for a particular category cannot be ignored and as such it is to be strictly applied in respect of the quota fixed by the State Government. It is only for this reason that the roster point has been fixed by the State Government and the same cannot be ignored or flouted. Further according to the petitioner the quota fixed under the Act of 1994 is a statutory right flowing from constitutional scheme and any deprivation of the post which should go to the reserved category would amount to violation of the fundamental rights. It is also the averment that the ratio of the judgments in the cases of Dharam Pal Singh Chauhan and another v. State of U.P. and ors., [ 2009 (4) ADJ 246 ] and Dr. It is also the averment that the ratio of the judgments in the cases of Dharam Pal Singh Chauhan and another v. State of U.P. and ors., [ 2009 (4) ADJ 246 ] and Dr. Vishwajeet Singh and others v. State of U.P. and others, [2009 (4) ALJ 325] would not apply in the facts and circumstances of the present case. It is also an averment in the writ petition that in the case of promotions to the post of Additional Commissioner (Grade-I), Commercial Tax, as also the Members, Commercial Tax Tribunal, all along the roster point has been adhered to.4. On the other hand, a written argument was submitted by learned Sr. Counsel, Shri Vinod Kumar Singh who appeared for opposite party Nos. 3 and 4. The main highlights of his submissions are that the Supreme Court in the case of R.S. Garg v. State of U.P. and ors., [ 2006 (6) SCC 430 ] has laid down the law on the point raised herein in a matter relating to Directorate of Industries, U.P. As per the ratio the reservation of 21 % for Scheduled Castes category cannot exceed the quota, and in the event of conflict between quota (percentage of reservation) and roster, the former shall prevail. Learned counsel also submitted that a Division Bench of this Court in the case of Dharmpal Singh Chauhan (supra) has rendered judgment on the basis of ratio of the judgment of the Supreme court in the case of R. S. Garg. As per the conclusion drawn by the co-ordinate Division Bench, the State Govt. while applying quota or roster have to confine to the outer limit of reservation provided by the Act of 1994 for SC, ST and OBC categories. It is also a written submission on behalf of opposite party Nos. 3 and 4 that the reservation for SC and ST categories cannot be clubbed together to determine the number of reserved vacancies as these two categories are separate and distinct. It is also the written submission of learned Sr. Counsel that the principle of rounding off can be applicable in computing the percentage of vacancies for allocation to reserved category candidates but such rounding off shall be subject to the statutory requirement of percentage of reservation as contained in sub-section (3) of Section 1 of the Act of 1994. It is also the written submission of learned Sr. Counsel that the principle of rounding off can be applicable in computing the percentage of vacancies for allocation to reserved category candidates but such rounding off shall be subject to the statutory requirement of percentage of reservation as contained in sub-section (3) of Section 1 of the Act of 1994. If by rounding off, the percentage of reservation exceeds the limit, then the said rounding off cannot be resorted to. In the case of 21 % reservation out of 16 posts of the Members, Commercial Tax Tribunal, it would work out to be 3.36 posts and by applying the rule of rounding off the vacancy position of 3.36 is to be treated as 3 only. Thus, only 3 reserved posts would be available for the Scheduled Castes candidates. As regards 21 posts of Additional Commissioner (Grade-I), Commercial Tax, according to learned Sr. Counsel if the roster is allowed to operate, then 5 posts would stand reserved for the Scheduled Castes candidates and thus it would amount to excessive reservation to the extent of 23.8 % exceeding the prescribed limit of 21 % posts reserved for the Scheduled Castes candidates. On the contrary, towards 21 % reservation out of 21 posts, it would work out to be 4.41 posts and thus by applying the rule of rounding off, 4.41 posts would be treated as 4. Thus, only 4 reserved posts out of 21 posts of Additional Commissioner (Grade-I), Commercial Tax would be available for the Scheduled Castes candidates. While justifying the impugned orders dated 19.03.2010 and 20.04.2010 passed by the State Government, learned Sr. Counsel has submitted in his written arguments that these orders have been passed only towards the compliance of the order of High Court and in furtherance of the law laid down by the Supreme Court and the High Court. The State Govt. has also taken a decision to fill up 8 posts by General category candidates and 1 post by SC candidates out of 9 vacancies of Departmental Members, Commercial Tax Tribunal. The State Govt. has also taken decision to fill up 13 posts of Additional Commissioner (Grade-I), Commercial Tax, by General category candidates and 2 posts by SC candidates out of 15 vacancies.5. We have heard learned counsel for parties and perused the records.6. Learned counsel for the petitioner Dr. The State Govt. has also taken decision to fill up 13 posts of Additional Commissioner (Grade-I), Commercial Tax, by General category candidates and 2 posts by SC candidates out of 15 vacancies.5. We have heard learned counsel for parties and perused the records.6. Learned counsel for the petitioner Dr. L.P. Misra submitted that the cadre strength of Members of the Commercial Tax Tribunal is 16, and as per reservation quota being 21% for Scheduled Caste and 2% for Scheduled Tribes, the total percentage of reservation for the Scheduled Caste Category would be 23% and thus out of 16 posts, 3.68 posts would be reserved for that category. As per methodology generally adopted for calculating the number of posts available for different categories, 3.68 posts as available in reserved category for Scheduled Castes Candidates on rounding off would work out to count 4 in total, and in respect of 21 posts of Additional Commissioner (Grade-1), it would be 4.83 posts and thus it would be counted as 5 posts.7. Dr. Misra referred to a Constitution Bench Judgment of the Supreme Court reported in 1995(2) SCC 745 (R.K. Sabharwal and Others v. State of Punjab) and argued that even a fraction of the quota available for reserved category candidates cannot be allowed to be eaten up by the candidates of General category.8. Dr. Misra in particular referred to paras 4 and 5 of the judgment which read as:“ When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserve posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said 356 posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any backward class of citizen which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the backward class/classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular backward class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said backward class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the backward class have already been appointed/ promoted against the general seats. As mentioned above the roster point which is reserved for a backward class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the backward class. The fact that considerable number of members of a backward class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/ Rules providing certain percentage of reservations for the backward classes are operative the same have to be followed. Despite any number of appointment/promotees belonging to the backward classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.We see considered force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of “running account” is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of “running account” is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of “running account” in the impugned instructions has to be so interpreted that it does not result in excessive reservation. “16% of the posts are reserved for members of the Scheduled Caste and Backward Classes. In a lot of 100 posts those falling at serial numbers 1,7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87 and 91 have been reserved and earmarked in the roster for-the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards upto 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in 357a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The “running account” is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate based on the proportion worked out in relation to their populations The numerical quota of posts is not shifting boundary but represents a figure with due application of mind. The percentage of reservation is the desired representation of the Backward Classes in the State services and is consistent with the demographic estimate based on the proportion worked out in relation to their populations The numerical quota of posts is not shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/ promotees occupy the posts meant for them in the roster. The operation of the roster and the running account” must come to an end thereafter. The vacancies arising in the cadre, after the initial posts arc filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster - points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category By following this procedure them shall neither be short-fall nor excess in the percentage of reservation.The expressions “posts” and “vacancies”, often used in the executive instructions providing for reservations, are rather problematical. The word “post” means an appointment, job, office or employment. A position to which a person is appointed. “Vacancy” means an unoccupied post or office.The plain meaning of the two expressions make it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur. The cadre - strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of ‘vacancy’ has no relevance in operating the percentage of reservation”.9. Dr. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of ‘vacancy’ has no relevance in operating the percentage of reservation”.9. Dr. Misra also submitted that the Government Orders impugned in the writ petition have been passed as per the ratio of judgments passed by two co-ordinate Benches of this Court in the matters of Dharampal Singh Chauhan (supra) and Dr. Vishwajeet Singh (supra). However, these judgments have been pronounced by following the ratio of judgment of the Apex Court in the case of R.S. Garg (supra).10. Further, according to Dr. Misra in the case of Dharampal Singh Chauhan, the existing vacancies were 2(two) and in the case of Vishwajeet Singh, there were only 6 posts, therefore, the ratio of judgment of R.S.Garg would not apply in the instant case. Besides, in Vishwajeet Singh’s case, a Division Bench of this Court has held that the quota and roster both are to be applied in calculating the total number of posts available for different categories. Dr. Misra also submitted that the judgment of Apex Court in R.S. Garg’s case (supra) has been rendered by a two Judges Bench, whereas the judgment in R.K. Sabharwal’s case has been pronounced by a Constitution Bench.11. Dr. Misra further submitted that if a definite percentage for reservation of posts in SC category is prescribed, then it has to be strictly adhered to, and in order to arrive at a correct calculation, the methodology of roster cannot be ignored. The ratio of judgment of R.S. Garg’s case may also be in conflict with the law laid down in the case of Post Graduate Institute of Medical Education & Research v. Faculty Association, [ (1998) 4 SCC 1 ].12. On the other hand, learned Chief Standing Counsel for the State, Shri D.K. Upadhyay, submitted that in the Scheduled Castes Category, the percentage of reservation would be limited to 21% only and though 2% posts are reserved for the Scheduled Tribes candidates, but the same would not be interchangeable in terms of the arguments of learned counsel for the petitioner.13. On the other hand, learned Chief Standing Counsel for the State, Shri D.K. Upadhyay, submitted that in the Scheduled Castes Category, the percentage of reservation would be limited to 21% only and though 2% posts are reserved for the Scheduled Tribes candidates, but the same would not be interchangeable in terms of the arguments of learned counsel for the petitioner.13. In so far as the provisions of Section 3 (3) of the Act of 1994 are concerned, they clearly postulate that firstly there should be vacancy in the Scheduled Tribes Category, and then Scheduled Tribes candidates are not available to fill up the vacancy. It is only then that a question would arise for consideration as to whether that vacancy is to be transferred to the quota reserved for the Scheduled Castes candidates. Shri Upadhyay further submitted that in R.S.Garg’s case a mechanism has been provided just in order to act as safeguards and to provide protection against the misuse of reservation, and that is why, it has been clearly laid down that the roster would not be applicable in the manner that would defeat the principles of reservation and that it would make available more number of posts than the posts specified for a particular class/category in its quota.14. Shri Upadhyay further submitted that the calculation arrived at by the learned counsel for the petitioner appears to be erroneous inasmuch as there is no conflict between the ratio of judgments in R.K. Sabharwal’s case as well as R.S. Garg’s so much so that in the judgment of Dharam Pal Singh Chauhan’s case, both the judgments have been read, discussed and interpreted in harmony. Rather, the judgment in R.S. Garg’s case is clarificatory in nature which has only facilitated the application of ratio laid down in Sabharwal’s Case. Shri Upadhyay also submitted that the State has filed a Special Leave Petition in the Supreme Court against Dharam Pal Singh Chauhan’s judgment, but the Hon’ble Court has not granted any interim order, and the judgment in second matter namely Vishwajeet Singh’s case has been referred to a Full Bench of this Court for consideration.15. Shri Vinod Kumar Singh, Senior Advocate, appearing for opposite parties no. Shri Vinod Kumar Singh, Senior Advocate, appearing for opposite parties no. 3 and 4 submitted that in terms of section 3(1) of the Act, if a calculation is made to determine the exact number of posts against 21% vacancy reserved for the Scheduled Castes Category, out of 16 posts of Members of the Commercial Tax Tribunal, the total number of posts available in that category would work out to be 3.36 and thus on rounding off, it would come to only 3 posts, and similarly as against 21% reserved posts out of 21 posts of Additional Commissioner (Grade-I), it would be only 4. Thus there would be no addition to the posts available for the Scheduled Castes candidates. Learned counsel also submitted that for transfer of vacancy available in the Scheduled Tribes category, there are certain postulates which are a condition precedent as highlighted in the submissions of learned Chief Standing counsel hereinabove.16. We have carefully considered the rival submissions and perused the pleadings of writ petition.17. On a bare reading of the aims and objects of the Act of 1994, it would appear that this legislation was passed in order to provide equal opportunity to hold a public office or post. As regards the percentage of reservation in the case of Scheduled Castes candidates besides Scheduled Tribes and Other Backward Classes, Section 3 of the Act of 1994 would be relevant, which on reproduction reads as:“3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. As regards the percentage of reservation in the case of Scheduled Castes candidates besides Scheduled Tribes and Other Backward Classes, Section 3 of the Act of 1994 would be relevant, which on reproduction reads as:“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 case of Other Backward Classes of citizens Twenty-seven per cent;Provided that the reservation under clause(c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II :Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made;(2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1);](3) Where a suitable candidate belonging to the Scheduled Tribes on Scheduled Castes, as the case may be, is not available in a recruitment either under sub-section (1) or sub-section (2) the vacancy reserved for him may be filled in such recruitment, from amongst the suitable candidates belonging to the Scheduled Castes or Scheduled Tribes, as the case may be, and as soon as a vacancy earmarked in the losses referred to in sub-section (5) for the Scheduled Castes or Scheduled Tribes, as the case may be , arises such person belonging to Scheduled Castes or Scheduled Tribes, as the case may be, shall be adjusted against such vacancy of his own category.(4) [x x x](5) The State Government shall for applying the reservation under sub-section (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reserve points and the roster so issued shall be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in sub-section (1) is achieved and the operation of the roster and the running account shall, thereafter, come to an end, and when a vacancy arises thereafter in public service or post the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster.(6) If a person 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.”18. In the case of Post Graduate Institute of Medical Education & Research, Chandigarh and others v. K.L. Narasimhan and others, reported in (1997) 6 SCC 283 also, a three Judges Bench of the Apex Court has elucidated the purpose of reservation. The observations of the Court have been made in the wake of a reference to the interpretation of the scope of Articles 25 to 30 made by a nine Judges Bench of the Apex Court in the case of Ahmedabad St. Xavier’s College Society v. State of Gujarat, [ (1974) 1 SCC 717 ] in the context of rights of minorities as well as in the context of deciding the question as to whether religion or language being the basis of reservation in establishing and administering educational institutions of their choice by the minorities is unconstitutional. The observations of the three Judges Bench as referred to herein above on reproduction read as under:“24...............The object is to integrate them in the mainstream of the society to instill a sense of confidence in the minorities so that none might have a feeling that other section of the population would trample upon the fundamental rights guaranteed under the Constitution. The ratio equally applies to the protective discrimination guaranteed to the Dalits and Tribes. The Dalits and Tribes are victims of social injustice, practice of untouchability and segregation from the mainstream of national life. The object of protective discrimination is to integrate them into the national mainstream so as to establish an integrated social order with equal dignity of person in which justice - social, economic and political - are enjoyed by them in equal measure with the general members of the society. Dr. B.R. Ambedkar in his closing speech, in reply to the Debates in the Constituent Assembly, had stated that the edifice in the Constitution was built up with laborious effect. There is no defect in the Constitution. If the Constitution fails, it fails not because there is defect in the Constitution but on account of the bad management by the administrators. Judiciary is a part of the State under the Constitution. Dr. K.M. Munshi, in reply to the Debates on the minority rights, had stated that one day the minority rights will be decided by 11 worthy Judges of the Supreme Court. Judiciary is a part of the State under the Constitution. Dr. K.M. Munshi, in reply to the Debates on the minority rights, had stated that one day the minority rights will be decided by 11 worthy Judges of the Supreme Court. The faith of the founding fathers of the Constitution in the Supreme Court Judges was so high that they chose to describe Supreme Court Judges as “Worthy Judges” to interpret the Constitution only to sustain the social order, integrate the people in united Bharat to elongate the constitutional rights and ensure the enjoyment of those rights and make these rights available to the Dalits, Tribes, poor, minorities and all sections in equal measure. It is repeatedly held by this Court that the interpretation of the constitutional provisions should always be such as to enable the availing of the rights given in the Constitution to the citizens, and not to deny or denude them by process of interpretation. The Judges of the constitutional Courts, in particular, as judicial statesmen, would always endeavour to ensure enjoyment of the rights enshrined in the Constitution by every section of the society consistent with the policies and principles laid down in the Constitution. We are to keep at the back of our mind, the above perspectives to reach the result.”19. In the case of M. Nagaraj and others v. Union of India and others, [ (2006) 8 SCC 212 ], the meaning and scope of reservation has been discussed in the context of Article 15(4) and 16(4)of the constitution as:“39. Reservation as a concept is very wide. Different people understand reservation to mean different things. One view of reservation as a generic concept is that reservation is an anti-poverty measure. There is a different view which says that reservation is merely providing a right of access and that it is not a right to redressal. Similarly, affirmative action as a generic concept has a different connotation. Some say that reservation is not a part of affirmative action whereas others say that it is a part of affirmative action.40. Our Constitution has, however, incorporated the word ‘reservation’ in Article 16(4) which word is not there in Article 15(4). Therefore, the word ‘reservation’ as a subject of Article 16(4) is different from the word ‘reservation’ as a general concept.41. Our Constitution has, however, incorporated the word ‘reservation’ in Article 16(4) which word is not there in Article 15(4). Therefore, the word ‘reservation’ as a subject of Article 16(4) is different from the word ‘reservation’ as a general concept.41. Applying the above test, we have to consider the word ‘reservation’ in the context of Article 16(4) and it is in that context that Article 335 of the Constitution which provides for relaxation of the standards of evaluation has to be seen. We have to go by what the Constitution framers intended originally and not by general concepts or principles. Therefore, schematic interpretation of the Constitution has to be applied and this is the basis of the working test evolved by Chandrachud, J. in the Election Case.”20. The question as how to achieve the objects of reservation by deriving maximum benefits out of the percentage of reservation made available for a particular class of candidates in the matter of public employment or otherwise as provided under an Statute while exercising utmost caution and restraints so that the statutory reservation does not amount to excessive reservation or eat up the quota of vacancy of other categories, has in past engaged the attention of the Apex Court as well as High Courts. To resolve this controversy, the Courts have interpreted the scope of the methodology of calculating the vacancy position by applying the formula/method of quota and roster.21. In its judgment in the case of Post Graduate Institute of Medical Education & Research v. Faculty Association & Others, [ (1998) 4 SCC 1 ], a five Judges Bench of the Apex Court while deciding the issue of reservation in single post cadre held that the reservation cannot be applied through roster or otherwise. It is so because 100% reservation is not permissible. Thus, the Bench overruled a contrary view taken in earlier decisions and affirmed the view taken in Dr. Chakradhar Paswan v. State of Bihar, [ (1988) 2 SCC 214 ]. Paras 34 to 37 of the judgment of Constitution Bench being relevant on reproduction read as under:“34. It is so because 100% reservation is not permissible. Thus, the Bench overruled a contrary view taken in earlier decisions and affirmed the view taken in Dr. Chakradhar Paswan v. State of Bihar, [ (1988) 2 SCC 214 ]. Paras 34 to 37 of the judgment of Constitution Bench being relevant on reproduction read as under:“34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent percent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent.35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.36. Mr. Kapil Sibal has contended that in some higher echelon of service in educational and technical institutions where special expertise is necessary to hold superior posts, like Professors and Readers, there should not be reservation even if there are plurality of posts in such cadre as indicated in the majority view in Indra Sawhney’s, case. It is, however, not necessary for us to decide the said contention for the purpose of disposal of these matters, where the question of reservation in single cadre post calls for decision.37. It is, however, not necessary for us to decide the said contention for the purpose of disposal of these matters, where the question of reservation in single cadre post calls for decision.37. We, therefore, approve the view taken in Chakradhar’s, case that there can not be any reservation in a single post cadre and we do not approve the reasonings in Madhav’s, case, Brij Lal Thakur’s, case and Bageswari Prasad’s, case upholding reservation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education & Research can not also be sustained. The Review Petition made in Civil Appeal No. 3175 of 1997 in the case of Post Graduate Institute of Medical Education & Research, Chandigarh, is therefore allowed and the judgment dated May 2, 1997 passed in Civil Appeal No. 3175 of 1997 is set aside.”22. In R.K. Sabharwal’s case (supra) also, a Constitution Bench of the Apex Court has held that the concept of running account by applying the roster has to be so interpreted that it does not result in excessive reservation. The Court also held that in a cadre of 100 posts, when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled and the percentage of reservation provided for the reserved category is achieved then there is no justification to operate the roster thereafter. The running account is to operate only till the quota provided is reached and not thereafter. Once the prescribed percentage of posts is filled, the numerical test of adequacy is satisfied, and thereafter, the roster does not survive. Thus, the roster can be permitted to operate only till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the running account must come to an end thereafter. The vacancy arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster.23. The Court also made it clear that there must be a post in existence to enable the vacancy to occur. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster.23. The Court also made it clear that there must be a post in existence to enable the vacancy to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of vacancy has no relevance in operating the percentage of reservation.24. In R.S. Garg’s case, the Apex Court held that in terms of the Act of 1994, the reservation for Scheduled Castes candidates is to remain confined to 21% only and in a case having six posts if the roster point was to be followed, two posts would be reserved for Scheduled Castes candidates which is impermissible. The Court thus held that in a case of this nature, the rule of strict construction is to apply, and the action on the part of the State is to be judged only in terms thereof. The Court also held that if 21% posts have been reserved for the Scheduled Castes candidates by the State itself, it cannot exceed the quota and indisputably in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the facts and circumstances of the case, the method of applying roster to fill up the posts by reserved category candidates, after every four posts, would not meet the constitutional requirements.25. Now coming to the ratio of the judgment of a Division Bench of this Court in the case of Singh Chauhan (supra), the Court has held that in the event of conflict between the quota of reservation and roster the former shall apply over the later. This view has been taken by placing reliance on the ratio of judgment of the Apex Court in the case of R.S. Garg (supra). The Division Bench also held that while applying quota of reservation and roster, the State have to confine to the outer limit of reservation provided under the Act of 1994 for SC, ST and OBC category. This view has been taken by placing reliance on the ratio of judgment of the Apex Court in the case of R.S. Garg (supra). The Division Bench also held that while applying quota of reservation and roster, the State have to confine to the outer limit of reservation provided under the Act of 1994 for SC, ST and OBC category. To clarify further, the Division Bench has held that the extent of reservation as provided by sub-section (1) of Section 3 of the Act of 1994, 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. The Division Bench has also held that under the provisions of sub-section (5) or sub-section (7) of Section 3 of the Act of 1994, while applying roster the State cannot travel beyond the outer limit of reservation provided by sub-section (1) of Section 3 of the Act of 1994. Thus, even after applying roster for SC, ST or OBC, the outer limit of reservation would be only 21%, 2% or 27% . Besides, the Division Bench also concluded that 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% for 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 for 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%. The Division Bench also recorded the finding that while exercising power for the purpose of reservation, it would be necessary to keep in view the law as laid down by the Hon’ble Supreme Court in M. Nagraj’s case (supra) which mandates to find out the backwardness or inadequacy of representation while keeping in view the necessity of efficiency provided by Article 335 of the Constitution. Thus the Government cannot travel beyond the outer limit of quota provided under sub-section (1) of Section 3 of the Act of 1994 for SC, ST and OBC i.e., 21%, 2% and 27% respectively in the matter of promotion. The Court cautioned while directing that any reservation made in excess of the outer limit provided under the Act of 1994 or any other statute, shall be deemed to be excessive reservation and thus 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).26. In the case of M. Nagraj (supra) the Apex Court has articulated the position in para 124 which reads as follows:“124. However, in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 355. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.”27. In a later judgment in the case of Dr. Vishwajeet Singh (supra) a coordinate Bench of this Court at Allahabad, which passed the judgment, has inter-alia also considered and discussed the method of rounding off in paras 82 and 83 of the judgment as under:“82. 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. 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 (2006 (5) ALJ 678) (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.83. The judgment of the Apex Court in State of U.P. and another v. Pawan Kumar Tiwari and others (2005 All. LJ 291) (supra) also supports our view that rounding off cannot be resorted when reservation for Scheduled Castes, Scheduled 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 Scheduled 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% celling which is unconstitutional hence, the rounding off vacancy of Scheduled 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).”28. Besides, the Court has also referred to and discussed a Full Bench judgment of the Bombay High Court in the case of New English High School Association, Nagpur and another v. Baldev and another [2008(5) ESC 3110] wherein it has been held that the implementation of reservation policy should not lead to absurd result and it has to be only with reference to the number of posts and the percentage of reservation.29. From the aforesaid discussion of the judgments of the Apex Court as well as High Courts, we are of considered view that in terms of the ratio of judgment of the Apex Court in the case of R.S. Garg (supra) which has been followed in the judgments of two coordinate Benches of this Court in the cases of Dharam Pal Singh Chauhan and Dr. Vishwajeet Singh, in the case of conflict between quota and roster, the former would prevail as in applying roster in all cases as discussed above, there are chances of exceeding the percentage of reservation as prescribed under the Statute. In the instant case also, the total number of available posts for Departmental Members in the Commercial Tax Tribunal is 16, and if the principle of roster is to apply, then 4 posts would go to the SC candidates. Thus it would obviously exceed the limit of 21% reservation and result in excessive reservation of 25% beyond the outer limit prescribed by the Act of 1994. As regards 21 posts of Additional Commissioner (Grade-I), Commercial Tax, if the roster is allowed to operate, then 5 posts would stand reserved for the Scheduled Castes candidates and thus it would also amount to excessive reservation to the extent of 23.8 % exceeding the prescribed limit of 21 % posts reserved for the Scheduled Castes candidates. As regards the argument on behalf of the petitioner that 2% posts reserved under the Act of 1994 for ST candidates can be clubbed to be counted as the posts reserved for the SC candidates, Mr. D.K. Upadhyay, learned Chief Standing Counsel, categorically submitted that there are certain conditions precedent before the reserved vacancies could be transferred inter-se between SC and ST categories. According to Mr. Upadhyay, there should be no suitable ST candidate available for the posts in question and then a decision is to be taken by the Government to transfer the vacancy reserved for ST candidates to the vacancy reserved for SC candidates. Thus, in view of clear stand taken by the State and further that there is nothing like automatic transfer of reserved vacancies inter-se, we are not inclined to accept the submission of Dr. L.P. Misra that the petitioner can also lay his claim against the vacancy reserved for ST candidates by taking the same as automatically transferred to the vacancy reserved for the Scheduled Castes candidates. The ratio of the judgment of Apex Court in the case of R.S. Garg holding that in computing the vacancy position, in case of conflict between quota and roster, only quota would be applicable, has been applied in the cases of Dharam Pal Singh Chauhan and Dr. Vishwajeet Singh by two coordinate Benches of this High Court. The ratio of the judgment of Apex Court in the case of R.S. Garg holding that in computing the vacancy position, in case of conflict between quota and roster, only quota would be applicable, has been applied in the cases of Dharam Pal Singh Chauhan and Dr. Vishwajeet Singh by two coordinate Benches of this High Court. During the course of hearing, this Court was informed that against the judgment in the case of Dharam Pal Singh Chauhan, an Special Leave Petition filed in the Supreme Court has been admitted but the Court has not granted any interim order and the judgment in the case of Dr. Vishwajeet Singh has been referred to a Larger Bench of this Court. In this case also, no interim order has been passed. In the absence of any interim order staying the operation of these judgments based on the ratio of judgment of Supreme Court in the case of R.S. Garg, we are not inclined to accept the submission of learned counsel for the petitioner. Thus in computing the vacancy position in the instant case we do not approve the rule of roster for the reason, amongst others, that as per calculation herein above, it would lead to and result in excessive reservation beyond the permissible limit of 21%. Moreover, this Court has been informed during the course of hearing of other cases, particularly relating to U.P. Tourism Development Corporation that in terms of the ratio of judgment of Dharam Pal Singh Chauhan, the State Government has issued the Govt. Order No. 67/41-2010-230/04TC-2 dated March 5, 2010. In regard to the submission of learned counsel for the petitioner that even a fraction of vacancy reserved for SC candidates cannot be eaten up by the candidates of General category, we are of the view that there cannot be any inflexible rule and it would also depend on the number of post as well as the restriction like not to exceed the percentage of reservation/quota prescribed under the Statute. Our view also finds support in and from the ratio of judgment of Supreme Court in the case of Post Graduate Institute of Medical Education & Research, [ (1998) 4 SCC 1 ] (supra) as also the judgments of this Court in the cases of Dharam Pal Singh Chauhan and Dr. Vishwajeet Singh. Our view also finds support in and from the ratio of judgment of Supreme Court in the case of Post Graduate Institute of Medical Education & Research, [ (1998) 4 SCC 1 ] (supra) as also the judgments of this Court in the cases of Dharam Pal Singh Chauhan and Dr. Vishwajeet Singh. In the case of State of U.P. & another v. Pawan Kumar Tiwari & others, [ 2005 ALJ 291], the Apex Court has struck the balance by applying the rule of impermissibility beyond the maximum limit of 50% reservation.“7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment.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 scheduled tribe category would come to 2 by rounding off 1.86, to the nearest higher value, and in that case a candidate from scheduled tribe category and not the respondent would be entitled to appointment. We cannot agree. No candidate in scheduled tribe category has chosen to lay challenge to the selection. We are also not aware if there is any scheduled 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.”30. 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.”30. In the premises set out hereinabove we hold that in the case of conflict between quota/percentage of reservation prescribed under the Act of 1994 and roster, the former shall prevail. We also hold that there is no such inflexible rule that no fraction of the vacancy reserved for SC, ST and OBC can be utilized to strike a balance between the posts reserved for the said categories and the posts available for the candidates of General category, if the benefits of reservation can lead to excessive reservation. Besides, we are also of the view that the rule of rounding off shall confine to the restriction of quota/percentage of reservation as prescribed under the Statute and shall in no case be allowed to exceed the outer limit of quota earmarked for the reserved categories.31. In view of all the aforesaid discussion this writ petition being devoid of merits is hereby dismissed.(Petition dismissed)_