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2011 DIGILAW 43 (GAU)

Deba Kumar Dutta v. State of Assam

2011-01-18

BIPLAB KUMAR SHARMA

body2011
ORDER B.K. Sharma, J. 1. All the writ petitions pertaining to the same issue, i.e. the promotion and seniority in the post of Addl. Chief Engineer in the Water Resources Department, Government of Assam, have been heard together and are being disposed of by this common judgment and order. 2. At the very outset, upon hearing the learned Counsel for the parties, although it was pointed that all the cases are governed by the earlier decisions of this Court reported in 2007 (4) GLT 587: Khaninder Nath Choudhury v. State of Assam and Ors. and 2010 (3) GLT 377: Bhogeswari Saikia v. State of Assam and Ors., it was argued by the contesting counsel that their being distinctive features involved in the writ petitions, it is possible to take a different view of the matter. 3. The brief leading to the filing of the writ petitions are as follows: W.P.(C) No. 3773/2010 4. The four writ petitions involved in this writ petition are aggrieved by the recommendation of the selection committee dated 20.05.2010 recommending the Respondent No. 4 and 5 for promotion to the post of Addl. Chief Engineer. The cadre strength of the Addl. Chief Engineer is 7(seven) and the promotion to the said cadre is governed by the Rules called the Assam Engineering (Flood Control Department) Services Rules, 1981. In the seniority list of feeder cadre published on 11.03.2010, the names of the Petitioners appeared at serial No. 4, 5, 6, and 7 and that of the Respondent Nos. 4 and 5 at serial Nos. 14 and 15 respectively. As per the provisions of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 and the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Rules, 1983, there is reservation for reserved category candidates both for direct recruitment and promotion to the extent as follows: i) Scheduled Castes - 7% ii) Scheduled Tribes (P) - 10% iii) Scheduled Tribes (H) - 5% 5. Based on the aforesaid percentage of reservation, the Petitioners have calculated the number of posts that can be reserved for reserved category candidates in the cadre of Addl. Chief Engineer comprising of 7 posts, which are as follows: i) Scheduled Castes - 7% -0.49 ii) Scheduled Tribes (P)- 10% - 0.7 iii) Scheduled Tribes (H)- 5% - 0.35 6. Based on the aforesaid percentage of reservation, the Petitioners have calculated the number of posts that can be reserved for reserved category candidates in the cadre of Addl. Chief Engineer comprising of 7 posts, which are as follows: i) Scheduled Castes - 7% -0.49 ii) Scheduled Tribes (P)- 10% - 0.7 iii) Scheduled Tribes (H)- 5% - 0.35 6. On the basis of the aforesaid calculations, the Petitioners have contended that there can be No. reservation for any category inasmuch as in case of providing reservation in the cadre of Addl. Chief Engineer comprising of 7 posts, same would exceed the percentage of reservation earmarked in the aforesaid Act and Rules. 7. The Petitioners have also placed reliance on the Annexure-3 office memorandum dated 14.07.2004 on the subject of implementation of the aforesaid Act and the Rules for filling up backlog vacancies for Scheduled Castes and Scheduled Tribes thereof in which the fact of noticing of carrying forward the backlog as well as the current vacancies even to the extent beyond the permissible entitled quota for Scheduled Tribes (P), Scheduled Tribes (H) and Scheduled Castes which have shown exaggerated figures for reserved categories, was conveyed. By the said office memorandum, the appointing authorities were requested to carry out a review for correct assessment of backlog/current vacancies in respect of said reserved category candidates both for direct recruitment and promotion. 8. By Annexure-4 representation dated 26.05.2010 made by the Assam Engineering Services Association to the Chief Secretary of the State bringing on records the aforesaid facts, it was contended that No. candidates belonging to reserved categories is entitled to be considered for promotion on the basis of the reservation as the percentage of reservation did not permit them to be so considered. W.P.(C) No. 4137/2010 9. This writ petition has also been filed by the four writ Petitioners involved in the first writ petition. In this writ petition, they have challenged the Annexure-4 select list dated 12.07.2010 so far as the same recommends the Respondent Nos. 4 and 5 for promotion to the cadre of Addl. Chief Engineer on the basis of reservation. W.P.(C) No. 1897/2009 10. In this writ petition, the Petitioner has challenged the Annexure-C office memorandum dated 12.03.02 with further prayer not to finalize the provisional gradation list of Executive Engineer (Civil) till such time the matter is finally adjudicated upon. 4 and 5 for promotion to the cadre of Addl. Chief Engineer on the basis of reservation. W.P.(C) No. 1897/2009 10. In this writ petition, the Petitioner has challenged the Annexure-C office memorandum dated 12.03.02 with further prayer not to finalize the provisional gradation list of Executive Engineer (Civil) till such time the matter is finally adjudicated upon. The Petitioner has also challenged the Annexure-D gradation list dated 06.09.2008 by which a provisional gradation list in the cadre of Executive Engineer (Civil) was published calling for objection, if any. The said gradation list has been prepared taking into account Annexure-C office memorandum dated 12.03.2002 issued by the Government of Assam in the Department of Personnel by which it has been provided that the SC/ST Government servant on their promotion by virtue of rules of reservation/roster will be entitled to consequential seniority and such decision would be effective from 17.06.95. Be it stated here that the Petitioner a general category candidate is aggrieved by fixation of seniority of the Respondent No. 4, a reserved category candidate above him in terms of the said provision in the impugned office memorandum dated 12.03.2002 in terms of which the Respondent No. 4 was given seniority above the Petitioner alongwith accelerated promotion as a reserved category candidate. Be it stated here that in the provisional gradation list while the Petitioner's name appears at serial No. 30, that of the Respondent No. 4 appears at serial No. 23. W.P.(C) No. 4790/2009 11. As in the above writ petition, in this writ petition also the Petitioner has challenged the fixation of seniority of the Respondent No. 4 above him and has also challenged the promotion of the Respondent No. 4 to the post of Superintending Engineer vide Annexure-H order dated 27.10.09. Such promotion has been effected on the basis of consequential seniority given to the Respondent No. 4 which is under challenged in the 3rd writ petition, i.e. W.P.(C) No. 1897/2009. 12. I have heard Mr. U.K. Nair, learned Counsel for the Petitioners in W.P.(C) No. 3773/2010 and W.P.(C) No. 4137/2010. I have also heard Mr. A.K. Bhattacharyya and Mr. D.K. Mishra, learned Sr. counsel appearing for the private Respondents in the said two writ petitions. Mr. D.K. Das, learned Counsel argued on behalf of the Petitioners in W.P.(C) No. 1897/09 and W.P.(C) No. 4790/09. I have also heard Mr. I have also heard Mr. A.K. Bhattacharyya and Mr. D.K. Mishra, learned Sr. counsel appearing for the private Respondents in the said two writ petitions. Mr. D.K. Das, learned Counsel argued on behalf of the Petitioners in W.P.(C) No. 1897/09 and W.P.(C) No. 4790/09. I have also heard Mr. B. Goswami, learned Standing Counsel, Water Resources Department as well as Ms. R. Chokraborty, learned Addl. Sr. Government Advocate. 13. Mr. U.K. Nair, learned Counsel for the Petitioner in W.P.(C) No. 3773/2010 and W.P.(C) No. 4137/2010 referring to the decision of this Court in Khaninder Nath Choudhury (supra), submitted that as in the said case in which promotional cadre consists of only four posts, in the instant case also the cadre of the Additional Chief Engineer being consisted of only seven posts, taking into account the percentage of reservation, there is No question of making promotion of reserved category candidates providing reservation as No such reservation is permissible within the prescribed percentage of reservation. 14. Mr. A.K. Bhattacharyya, learned Sr. counsel appearing for the Respondent No. 5, upon a reference to the minutes of the selection committee held on 20.05.2010, submitted that irrespective of the percentage of reservation, the said Respondent having excelled in the selection on the basis of the marks obtained by him as per the gradation earned in the ACRs, he is entitled to get promotion on the basis of the said recommendation. 15. Supporting the impugned decision of the selection Board, Mr. B. Goswami, learned Standing counsel, Water Resources Department submitted that the decision of the selection Board providing reservation to the reserved category candidates on the basis of the reservation roster cannot be faulted with Ms. R. Chokraborty, learned Addl. Sr. Government Advocate also contended that having regard to the reservation roster irrespective of the percentage of reservation, the reserved category candidates are required to be considered as per the said reservation roster and such consideration having been made by the selection Board, No. fault can be attributed to the decision arrived at by it. 16. Mr. D.K. Mishra, learned Sr. Counsel appearing for the Respondent No. 4 in W.P.(C) No. 3773/2010 and W.P.(C) No. 4137/2010 made altogether a different submissions. 16. Mr. D.K. Mishra, learned Sr. Counsel appearing for the Respondent No. 4 in W.P.(C) No. 3773/2010 and W.P.(C) No. 4137/2010 made altogether a different submissions. The bone of contention of his argument is that if the percentage of reservation in each of the category which is SC-7%, ST(P)-10% and ST(H)-5%, are clubbed together, then the total percentage of reservation comes to 22%. According to him, in a cadre of seven posts, based on the said percentage of reservation, i.e. 22%, the posts available being 1.54, two posts are required to be earmarked for the reserved category candidates irrespective of any particular category of reserved candidates. According to him, the said two posts are required to be routed for and filled up through reserved category candidates by operation of roster. He has placed reliance on the decisions reported in (2005) 2 SCC 10 :State of U.P. v. Pawan Kr. Tiwari; (1995) 2 SCC 745 : R.K. Sabharwal v. State of Punjab; (2006) 8 SCC 212 : M. Nagraj v. Union of India and (2008) 10 SCC 382 :Siv Prasad v. Government of India and Ors. 17. I have considered the rival submissions made by the learned Counsel for the parties and have also gone through the entire materials on record. I have also considered the decisions on which the learned Counsel for the parties have placed reliance in consideration of which my decisions in the writ petitions are a follows: W.P.(C) No. 1897/2009 W.P. (C) No. 4790/2009 18. The issue involved in both the writ petitions is one and the same. In both the writ petitions the sole contention of the Petitioners is that the Respondent No. 4, a reserved category candidate (SC), who was junior to him could not have been given consequential seniority above him on the strength of accelerated promotion and consequently could not have been promoted to the rank of Superintending Engineer. In this connection, he has challenged the office memorandum dated 12.03.2002 (Annexure-C), which provides for consequential seniority to the reserved category candidates (SC/ST) on their promotion by virtue of rules of reservation/roster. 19. The above office memorandum was also put to challenge in W.P(C) No. 1532/09: Bhogeswari Saikia v. State of Assam and Ors. In this connection, he has challenged the office memorandum dated 12.03.2002 (Annexure-C), which provides for consequential seniority to the reserved category candidates (SC/ST) on their promotion by virtue of rules of reservation/roster. 19. The above office memorandum was also put to challenge in W.P(C) No. 1532/09: Bhogeswari Saikia v. State of Assam and Ors. According to the Petitioner, Article 16(4)(A) of the Constitution of India only enables the State to make provision for reservation in the matter of promotion with consequential seniority but it does not lay down, even by implication that the reserved category employees shall be entitled to the benefit of accelerated seniority as a matter of right, in the absence of any specific statutory provision in this regard. In this connection, the Petitioner has referred to the provisions of the aforesaid Act and the Rules and also Assam Engineering (Flood Control Department) Services Rules 1981. In Bhogeswari Saikia (supra) this Court dealing with the same very contention while upholding the aforesaid office memorandum dated 12.03.02 has observed thus: 44. The whole controversy has arisen in view of the particular interpretation given by the Petitioners that unless a law is framed, merely on the strength of an OM like the one dated 12.03.2002 and/or without amending the recruitment rules or making any provision to supplement the said rules, the reserved category candidate cannot be given consequential seniority. Thus, the issue raised is on technicalities. 45. Article 16(4)(A) enables the State to make provision for reservation with consequential seniority. Such provision can be laid down by Office Memorandum as has been done in the instant case. The whole emphasis of the Petitioners is on "Law and Rules" and not on "provisions". Once it is held that the State is empowered to make a provision and the source of its power is traceable and discernible, irrespective of the technicalities raised by the Petitioners, I am of the considered opinion that the implementation of the decision of the State Government to grant consequential seniority to the reserved category candidates in the form of the impugned OM dated 12.03.2002, is sustainable in law. 20. Above being the position, there is No infirmity in providing consequential seniority to the Respondent No. 4 on his accelerated promotion as a reserved category candidate which consequently made him eligible for promotion to the cadre of Superintending Engineer. 21. 20. Above being the position, there is No infirmity in providing consequential seniority to the Respondent No. 4 on his accelerated promotion as a reserved category candidate which consequently made him eligible for promotion to the cadre of Superintending Engineer. 21. In view of the above, I do not find any merit in the aforesaid two writ petitions, namely W.P.(C) No. 1897/2009 and W.P.(C) No. 4790/2009. Consequently both the writ petitions stand dismissed. W.P.(C) No. 3773/2010 W.P.(C) No. 4137/2010 22. If we go by the decision in Khaninder Nath Choudhury (supra), these writ petitions will have to be allowed by interfering with the decision of the selection committee towards recommending the Respondent Nos. 4 and 5 as reserved category candidates (both SC). However, while Mr. A.K. Bhattacharyya, learned Counsel for the Respondent No. 5 argued that irrespective of such reservation, the said Respondent is entitled to get promotion on the strength of marks obtained by him in the selection, Mr. D.K. Mishra, learned Counsel appearing for the Respondent No. 4 made altogether a different submission which has been noted above. 23. As to what will be the percentage of reservation based on the percentage of reservation provided for in the aforesaid Act of 1978 under different categories has been noted above, a position which has been admitted by all the Respondents. Taking into account the total percentage of reservation in each of the categories vis-a-vis the total cadre strength in the cadre of Addl. Chief Engineer which is seven, the permissible quota/percentage for the three reserved categories, i.e. SC; ST(P) and ST(H) comes to 0.49, 0.7 and 0.35 respectively. Thus No. post can be reserved for any of the reserved category candidates, more particularly for SC candidates. However, Mr. Mishra, learned Counsel for the Respondent No. 4 as noted above, argued that clubbing together the entire percentage of reservation for all the three categories which comes to 22% providing quota of 1.54% to reserved category candidates, by operating roster of reservation, the reserved category candidates in each of the categories as per their turn should be provided promotion. It is in this context, he has placed reliance on the aforementioned decisions which are discussed below: 24. It is in this context, he has placed reliance on the aforementioned decisions which are discussed below: 24. In Pawan Kumar Tiwari (supra), the Apex Court dealing with the manner of treatment of fraction of a vacancy in the context of prescribed percentage of general and reserved categories, held that faction even one-half or more should be treated as one and if less than one-half, it should be ignored. However, in case of reserved vacancies, if conversion of one-half or more into one leads to the reserved vacancies exceeding 50% of the total vacancies, it would be unconstitutional and so has to be ignored. Thus, on the facts of the said case such conversion was allowed for the general category, but not for the reserved category candidate. This case being one of application of prescribed percentage to general and reserved categories and as to how the fraction of a vacancy is to be treated, is of No. help to the case of the Respondent No. 4 that although percentage of reservation is applicable to each of the categories, they are required to be clubbed together to provide a composite percentage of reservation towards operating the roster. 25. The decision in R.K. Sabharwal (supra) has been pressed into service to contend that the total cadre strength can be taken into consideration in the matter of promotion as a unit which there cannot be any dispute. Thus, the unit being the cadre of Addl. Chief Engineer, percentage of reservation as envisaged in the aforesaid Act is required to be applied. What has been emphasized in the said decision is that when all the roster points in a cadre are filled, the required percentage of reservation is achieved. Once the total cadre is filled representing all the SC/ST and backward classes in accordance with reservation policy, then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to which the respective vacancies belong. Nowhere in the judgment there is any indication that compartmentalized reservation for different categories of reserved candidate can be clubbed together towards operating the roster providing reservation to each one of the categories. 26. In M. Nagraj (supra) on which Mr. Nowhere in the judgment there is any indication that compartmentalized reservation for different categories of reserved candidate can be clubbed together towards operating the roster providing reservation to each one of the categories. 26. In M. Nagraj (supra) on which Mr. Mishra has placed reliance, the Apex Court inter alia held that the appropriate Government is to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether given class/group is adequately represented in service. It was also observed that the cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. Further roster is to be post specific and not vacancy basis. Thus, in this case also the emphasis is on the application of the cadre strength as a unit for the purpose of operation of roster in order to ascertain as to whether percentage of reservation as envisaged in the Rules has been achieved or not. Nowhere in the judgment the emphasis is on the application of percentage of reservation for the different categories as a unit towards operating the roster. Thus, this case is also of No. help to the case of the Respondent No. 4. 27. In Shiv Prasad (supra), the Apex Court dealing with the question how can the women's reservation be implemented and enforced and whether such reservation will exceed 50% reservation which is maximum, answered the question in negative. There was 20% reservation for women and 3 (three) posts were filled in, which came to 0.6%, i.e. more than 0.5%. In the said fact situation, it was held that 1 (one) post had to be horizontally reserved for a woman candidate. It is not understood as to how this case can be of any help to the case of the Respondent No. 4. 28. In Khaninder Nath Choudhury (supra) dealing with a similar situation, it has been held that in a category consisting of four posts taking note of the aforesaid percentage of reservation earmarked for each of the categories of reserved candidates, there cannot be any reservation. 29. 28. In Khaninder Nath Choudhury (supra) dealing with a similar situation, it has been held that in a category consisting of four posts taking note of the aforesaid percentage of reservation earmarked for each of the categories of reserved candidates, there cannot be any reservation. 29. In R.S. Garg v. State of U.P. reported in (2006) 6 SCC 430 , the Apex Court dealing with a similar situation in which there were 6 posts and the reservation was to be confined to 21%, held that if the roster was to be followed, 2 posts would be reserved for SC candidates, which is impermissible. In paragraph 40 of the judgment, the Apex Court observed thus: We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Scheduled 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 4 posts, in our considered opinion, does not meet the constitutional requirements. 30. This Court in Manoj Kumar Roy v. State of Assam reported in 1998 (2) GLT 421under similar circumstances held that the percentage of reservation being below the minimum fraction required, the SC candidate was not entitled to get appointment as a reserved category candidate. 31. In State of Punjab v. Harcharan Singh reported in (1998) 4 SCC 01, the question before the Constitution Bench was, whether in a single cadre posts, reservation for SC, ST and OBC's can be applied either directly or through the roster, in which vacancies are rotated amongst general category and reserved category candidates. The Apex Court observed that 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, which is impermissible. This principle is equally applicable to the case in hand where the cadre of Superintendent consist of only 4 posts. This principle is equally applicable to the case in hand where the cadre of Superintendent consist of only 4 posts. This being the position, the argument advanced by the learned State Counsel as well as by the learned Counsel for the Respondent No. 3 that by operation of roster, reservation will have to be applied cannot be accepted. 32. In view of the above, the argument advanced by Mr. Mishra, learned Counsel appearing for the Respondent No. 4 merits No. acceptance. This now leads us to the argument advanced by Mr. A.K. Bhatacharyya, learned Counsel appearing for the Respondent No. 5 that irrespective of any reservation provided to the said Respondent he is entitled to get promotion on the strength of marks obtained by him in the selection. 33. To answer the above issue, a little discussion will be required in respect of the minutes of the meeting held on 20.05.2010. As per the said minutes, in the cadre of Add. Chief Engineer consisting of seven posts, the Board decided to prepare a select list of 10 Superintending Engineers for promotion. Applying the provisions of the Rules, although 20 numbers of officers in the category of Scheduled Castes were to be considered, but there being only 15 such officers, their cases were considered. Taking note of the seniority positions, the Petitioners were placed at serial Nos. 4, 5, 6 and 7 respectively while the Respondent Nos. 4 and 5 were placed at serial Nos. 14 and 15. The Selection Board although took note of the total cadre strength and the percentage of reservation for each of the categories and the quota of promotion arrived at on that basis, but also took note of purported backlogs of reserved categories as follows: ST(P) - 7 SC - 4. ST(H) - 3 34. The minutes of the Selection Board reveals that there are No. officers in the cadre of Addl. Chief Engineer (Civil) belonging to reserved categories. The Board also took of the fact that amongst 15 eligible candidates there was No. ST(P) and ST(H) candidates and that the two SC candidates available were the Respondent Nos. 4 and 5. Consequently the Board took a decision to fill up two backlog vacancies of SC. 35. Chief Engineer (Civil) belonging to reserved categories. The Board also took of the fact that amongst 15 eligible candidates there was No. ST(P) and ST(H) candidates and that the two SC candidates available were the Respondent Nos. 4 and 5. Consequently the Board took a decision to fill up two backlog vacancies of SC. 35. After the aforesaid decision to provide promotion to two SC candidates against the backlog vacancies, the Board examined the ACRs and other service records of the Officers within the zone of consideration for the last five years. On the basis of the guidelines which are outstanding (4 marks), very good (3 marks), good (2 marks) and average (1 mark), the Board classified the officers under consideration in the following categories in conformity with the uniform policy of promotion. Category-(I) - Securing marks 18 and above. Category-(II) - Securing marks from 11 to below 18. Category-(III) - Securing marks below 11. 36. Upon such categorization and classification, the Board decided that the officers falling in Category-I will get preference over the category-II and only the officers falling in category-I and II are eligible for getting promotion. It was also decided that inter se seniority amongst the officers in the same category shall remain unchanged, meaning thereby that irrespective of the marks and position obtained in a particular category, the seniority in the feeder cadre on promotion will have to be maintained. 37. Admittedly as per the gradation list, the Petitioners are senior to the private Respondents. The four Petitioners have secured 14, 12, 13 and 15 marks respectively while the Respondent Nos. 4 and 5 have secured 15 and 11 marks respectively. As per the aforesaid categorization and classification, on the basis of the said marks obtained by the each one of the candidates, they are to be placed in category-II (securing marks 11 and below 18). Barring one out of 15 candidates under consideration all of them secured marks in between 11 to 15 and consequently they were placed in category II. However, having regard to the decision of the Selection Board to recommend only 10 candidates, such recommendation was made confining to 10 candidates on the basis of the marks obtained by them. Barring one out of 15 candidates under consideration all of them secured marks in between 11 to 15 and consequently they were placed in category II. However, having regard to the decision of the Selection Board to recommend only 10 candidates, such recommendation was made confining to 10 candidates on the basis of the marks obtained by them. Thus, irrespective of the marks obtained by the recommended candidates, all of them being in category-II promotion will have to be effected on the basis of the seniority position in the feeder cadre. This aspect of the matter finds mention in the minutes of the selection as follows: As the selection is for 5 Nos. of vacancies in the rank of Additional Chief Engineer (C) Water Resources, hence the double the meme of candidates are to be selected as per Rule 13(5) of the service Rules. The inter-se-seniority within the category will remain unchanged irrespective of the marks obtained by them as all the officers are listed under Category-II 38. The minutes of the selection Board does not speak of preference to the recommended candidates on the basis of the marks obtained and who are placed in category II. Rather, it says that the inter se seniority for amongst the officers in the same category shall remain unchanged and accordingly the recommendation has also been made in order of preference as per which the Petitioners are above the private Respondents. But for the reservation provided to the said two Respondents, the said two posts would have gone to the general category candidates. Thus, the argument advanced by the learned Counsel for the Respondent No. 5 is also not sustainable. 39. It will have to be borne in mind that the percentage of reservation as noted above, i.e. 7% for SC, 10% for SC(P) and 5% for ST(H) is not only applicable for the vacancies to be filled up by direct recruitment (see Section 4 of the Act, 1978), but the said percentage of reservation is also applicable for vacancies to be filled up by promotion (See Section 5 of the Act, 1978). Although a separate 20 point roster is given in the Schedule to the Act to be maintained, but as has been held by the Apex Court in R.K. Sabharwal (supra), when a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reservation points, the posts shown on the reserved points are to be filled from the amongst reserved categories. However, operation of the roster will have to be in reference to prescribed percentage of reservation. The prescription being operation of the roster till the required percentage is achieved, in absence of any quota on the basis of the prescribed percentage, there is No question of operating the roster to achieve impermissible percentage of reservation. 40. Above being the position, I am of the considered opinion that taking into account the respective percentage of reservation earmarked for all the three categories, No. reservation of vacancies can be provided to the private Respondents and consequently their selection on the basis is liable to be interfered with. 41. In view of the above, the writ petitions being W.P.(C) No. 3773/2010 and W.P.(C) No. 4137/2010 are allowed by setting aside and quashing the recommendation of the selection committee dated 20.05.2010 so far as the same relates to the Respondent Nos. 4 and 5 as reserved category candidates (SC). However, they will be entitled to get consideration without any weightage on reservation. 42. All the writ petitions are answered in the above manner. There shall be No. order as to costs.