JUDGMENT By the Court.—Heard Sri Abhishek Rai, Advocate holding brief of Sri Kirshna Kumar Dubey, learned counsel for the appellants and Sri C.K. Rai, learned counsel appearing on behalf of the respondent. 2. By means of present appeal, the appellants have challenged the order dated 15.12.2011 passed in Writ Petition No. 70685 of 2011. 3. The brief facts of the case are that the appellants are Seasonal Assistant Wasil Baqi Nawis working in the Collectorate, Saharanpur. It appears that there were 43 sanctioned posts for Group (Ka). 27 posts were already filled up on the commencement of U.P. District Office (Collectorate) Clerk Grade Service (Second Amendment) Rules, 2011 (hereinafter called as ‘Rules 2011’) which came into force on 26th May, 2011. Out of 27 posts, 26 posts have been filled by way of direct recruitment and one post by way of promotion. It is not in dispute that 27 posts were filled in accordance to the prevailing rule existed prior to the commencement of Rules 2011. 4. On 26th May, 2011 when Rules 2011 was enforced, only 16 posts of Group (Ka) were vacant and were to be filled. 5. It is not in dispute that prior to the commencement of Rules 2011, the Seasonal Assistant Wasil Baqi Nawis were not the source of recruitment for Group (Ka) post. 6. Rule 5 of the Rules 2011 provides for recruitment on the post of Group (Ka), shall be filled up 50% by direct recruitment, 30% from Seasonal Assistant Wasil Baqi Nawis and 20% from employee of Group -D. 7. It appears that to fill up 16 vacant posts of Group (Ka) under Rules 2011 and for consideration of Seasonal Assistant Wasil Baqi Nawis for their absorption/regularisation on the aforesaid posts a Committee has been constituted. The Committee has given its report on 15.11.2011. On the basis of the report of the Committee dated 15.11.2011, the District Magistrate, Saharanpur vide order dated 19.11.2011 absorbed/regularized 13 Seasonal Assistant Wasil Baqi Nawis on the post of Group (Ka) vide order dated 19.11.2011. Subsequently, it appears that the Committee has given a report dated 26.11.2011 to the District Magistrate wherein it is stated that in accordance to the Rules 2011 as against 30% quota of Seasonal Assistant Wasil Baqi Nawis by mistake instead of taking 4 posts, 13 posts have been recommended for regularisation/absorption of Seasonal Assistant Wasil Baqi Nawis by the Committee on 15.11.2011. The report dated 26.11.2011 is reads as follows : ^^ftykf/kdkjh egksn;] ftykf/kdkjh ds vkns'k fnukad 1&8&2011 ds vuqikyu esa lkekf;d lgk;d okfly ckdh uohlksa ds fofu;ferhdj.k gsrw vij ftykf/kdkjh ¼foRr ,oa jk0½ dh v/;{krk es xfBr p;u lfefr dh cSBd fnukad 15&11&2011 dks lEiuu gqbZA esjs }kjk izLrqr uksV'khV@fofu;ferhdj.k dh dk;Zokgh esa Js.kh *d* fyfid oxZ ds Lohd`r 43 inksa ds lkis{k Hkjs x;s 27 inksa esa ls 'ks"k 16 inksa ij ftyk dk;kZy; ¼dysDVjh½ fyfid oxZ lsok ¼f}rh; la'kks/ku½ fu;ekoyh o"kZ 2011 ds izkfo/kkuksa ds vuqlkj lkekf;d lgk;d okfly ckdh uohlksa ds 30 izfr'kr dksVs ds vuqlkj fofu;ferhdj.k gsrq orZeku esa dqy 04 in curs FksA fdUrq fyihdh; =wfVo'k mDr 04 inksa ds LFkku aij dqy Lohd`fr inksa ¼43½ ds lkis{k 30 izfr'kr fofu;ferhdj.k dksVs ds vuqlkj 13 inksa dk fofu;ferhdj.k gsrw uksV'khV izLrqr dh x;h ftl ij p;u lfefr }kjk fofu;ferhdj.k dh laLrqfr dh x;h Fkh] ftls egksn; }kjk fnukad 15&11&2011 dks vuqeksfnr dj fn;k x;k gSA fdUrq v?kru fu;ekoyh 'kklukns'k la[;k 857@1&4&11&382 ch&4@98 fnukad 26 ebZ 2011 dk voyksdu djus ds mijkUr ;g Kkr gqvk fd mDr fofu;ferhdj.k orZeku essa fjDr 16 inksa ds lkis{k gksuk pkfg, FkkA mDr 16 fjDr inksa ij orZeku esa fuEufyf[kr O;oLFkk fu;ekuqlkj curh gS% 1& 16 fjDr in esa ls 04 in lnSo fjDr j[ks tkus gksaxsa& D;ksfd tuin esa rglhynkj lnj] udqM] csgV o nsocUn esa iz'kklfud vf/kdkjh rSukr gSa tks dysDVªsV vf/k"Bku esa gh ifjxf.kr gksrs gSaA 2& 'ks"k fjDr 12 inksa dk 50 izfr'kr vFkkZr 06 in lh/kh HkrhZ }kjk& 3& 12 fjDr in dk 30 izfr'kr vFkkZr 04 in lkekf;d lgk;d okfly okdh uohlk ds fofu;ferhdj.k }kjk& 4& 12 dk 20 izfr'kr vFkkZr 02 in prqFkZ Js.kh deZpkfj;ksa }kjk& vr% vuqjks/k gS fd mijksDr =qfV dks la'kksf/kr djrs gq, iwoZ fofu;ferhdj.k vkns'k fnukad 15&11&2011 dks [kf.Mr djrs gq, iqu% orZeku esa fjDr 12 inksa ds lkis{k 30 izfr'kr dksVs ds vUrZxr 04 inksa ij fuEu 04 lkekf;d lgk;d okfly ckdh uohlksa ds fofu;ferhdj.k fd, tkus dh vk[;k laLrqfr izsf"kr gSA dz0la0 Ukke deZpkjh Ikn uke rSukrh LFkku 1& Jh pUnz izdk'k ¼v0 tk0½ dfu"B fyfid xzkeh.k lhfyax dk;kZy; dysDVªsV lgkjuiqj 2& Jherh fueZy 'kekZ ¼lkekU;½ Vadd la;qDr dk;kZy; dysDVªsV lgkjuiqj 3& Jh fodze flag ¼v0 fi0 oxZ½ vgyen U;k;ky; uxj eftLVªsV lgkjuiqj 4& Jh nqxkZ izlkn ¼lkekU;½ Vadd rglhy csgV izLrqr vkj0 ,0 vkbZ0 dh fjiksVZ dk ijh{k.k fd;k x;kA iwoZ izsflr fjiksVZ@laLrqfr fnukad 15&11&2011 dks fujLr fd, tkus rFkk la'kksf/kr mijksDrkuqlkj 4 inksa ij mijksDr ik= vH;fFkZ;ksa ds p;u@fofu;ferhdj.k dh laLrqfr dh tkrh gSA vkj0 ,0 vkbZ0 dh fjiksVZ dh dk;Zokgh Hkh izLrkfor dh x;hA** 8. The aforesaid report has been approved by the concerned authority and the District Magistrate on 26.11.2011. The said report is annexure 2 to the writ petition. 9. In pursuance of the report dated 26.11.2011 and the approval by the concerned authority, the District Magistrate vide its order dated 26.11.2011 has cancelled the recommendation dated 15.11.2011 and the order for absorption/regularisation 4 Seasonal Assistant Wasil Baqi Nawis on the post of Group (Ka) the order of the District Magistrate dated 26.11.2011 is annexure 1 which was impugned in the writ petition. 10. It appears that the 13 posts have been calculated on the basis of total sanctioned posts namely 43 i.e. 30% of 43 sanctioned posts. Amongst 13 persons petitioners were also selected. 11. In the recommendation dated 26.11.2011 which has been approved by the concerned authority including the District Magistrate, 4 posts have only been taken for absorption/regularisation on the post of Group (Ka) from Seasonal Assistant Wasil Baqi Nawi. It has been observed that out of 16 posts, 4 posts are to be kept permanently vacant and after deducting 4 posts the balance 12 posts are to be filled up, 50% i.e. 6 posts by direct recruitment, 30% i.e. 4 posts from Seasonal Assistant Wasil Baqi Nawis and 20% i.e. 2 posts from Group D employee. By this order, only 4 persons have been selected for promotion on the post of Group (Ka) from Seasonal Assistant Wasil Baqi Nawis and the petitioners’ name have been excluded from consideration. 12. Being aggrieved, the petitioners filed the Writ Petition No. 70685 of 2011 which has been disposed of vide order dated 15.11.2011 with the following observations: “This is accepted position that in the district Saharanpur there are total 43 sanctioned posts of Group ‘C’ employees and this much is also accepted that out of the said 43 posts 26 have been filled up by way of direct recruitment and one by way of promotion. Thus out of 43, 27 posts already stood filled up, and as per this factual situation direct recruitment quota stood exhausted. Record in question reflects that in the present case while taking into account 30 % and 20 % quota straightaway computation has been made on the basis of 43 sanctioned post and based on the same 13 incumbents were sought to be appointed from amongst Seasonal Assistant Wasil Baqi Nawis. Record in question reflects that in the present case while taking into account 30 % and 20 % quota straightaway computation has been made on the basis of 43 sanctioned post and based on the same 13 incumbents were sought to be appointed from amongst Seasonal Assistant Wasil Baqi Nawis. After the said exercise had been undertaken, it appears that the matter was re-examined and only 4 vacancies have come as per the computation made in the quota of Seasonal Assistant Wasil Baqi Nawis and accordingly, action has been taken. Further on factual front, it is reflected that out of 43 sanctioned posts 16 are lying vacant, and direct recruitment quota is already full, these 16 posts have to be distributed in between Seasonal Assistant Wasil Baqi Nawis and Group ‘D’ employees. In normal course of business 13 posts would go to Seasonal Assistant Wasil Baqi Nawis and 9 post would go to Group D employees, and only in the event candidate from said category is not available, then it would got to direct recruitment quota. As direct recruitment quota already stood exhausted in the past, as such in one particular year of recruitment remaining 16 vacancies could not have been filled up by giving 13 posts in favour of Seasonal Assistant Wasil Baqi Nawis and thus ignoring the clam of Group D employees, who had also staked claim. In such a situation these 16 remaining vacancies were liable to be distributed on the basis of 30% and 20% ratio amongst Seasonal Assistant Wasil Baqi Nawis and Group ‘D’ employees, and requisite exercise was required to be undertaken. Once this is conceded that direct recruitment quota is overfull, and Seasonal Assistant Wasil Baqi Nawis are entitled for 13 posts and Group D employees are entitled for 9 posts, and it has been accepted that only one post has been filled up by way of promotion from amongst Group D employees, then view from any respective, out of them 16 remaining vacancies, 10 posts would go to Seasonal Assistant Wasil Baqi Nawis and 6 posts would go to Group D employees. Requisite exercise as such be taken within next two months. Earlier order shall abide by the order that would be passed hereafter. Writ petition stands disposed of accordingly.” 13. Requisite exercise as such be taken within next two months. Earlier order shall abide by the order that would be passed hereafter. Writ petition stands disposed of accordingly.” 13. Learned counsel for the appellants submits that 30% posts is to be calculated from sanctioned posts namely 43 posts and not from 16 vacant posts. He submitted that on the date of commencement of Rules 2011, the 50% quota of direct recruitment has already been filled up, and therefore, the 16 posts were to be filled up from the Seasonal Assistant Wasil Baqi Nawis and Group D employee. He submitted that the observation made in the impugned order dated 26.11.2011 that out of 16 posts, 4 are to be kept vacant because in the Janpad Saharanpur in Tehsil Sadar Nakur, Behat and Devband Administrative Officers are posted which comes within the Collectorate has no basis and such allotment is contrary to the Rules 2011. He submitted that in the order dated 19.11.2011, 16 vacant posts has been rightly apportioned as 13 for the Seasonal Assistant Wasil Baqi Nawis and 6 from Group D and there was no justification to cancel the order dated 19.11.2011. He further submitted that the learned Single Judge has further erred in not accepting the claim of the petitioners and has further erred in apportioning the 16 posts on the basis of 3:2 ratio giving 10 posts to Seasonal Assistant Wasil Baqi Nawis and 6 posts to the Group D employee which has no legal basis. 14. Learned counsel for the appellants further submitted that throughout the State in all the Collectorates, the vacancies have been filled after calculating 30% from the sanctioned posts and not the vacant post available on the date of commencement of the Rules 2011. In view of the aforesaid submissions, it is submitted that the order of the learned Single Judge is patently illegal and liable to be set aside. He further submitted that the order of District Magistrate, Saharanpur dated 26.11.2011 be set aside and the order dated 19.11.2011 of District Magistrate be restored. 15. Sri C.K. Rai, learned Standing Counsel submitted that the order dated 26.11.2011 passed by the District Magistrate is absolutely correct. He submitted that the right of the Seasonal Assistant Wasil Baqi Nawis for consideration on the posts of Group (Ka) flows from the Rules 2011. 15. Sri C.K. Rai, learned Standing Counsel submitted that the order dated 26.11.2011 passed by the District Magistrate is absolutely correct. He submitted that the right of the Seasonal Assistant Wasil Baqi Nawis for consideration on the posts of Group (Ka) flows from the Rules 2011. Prior Rules 2011 they were not entitled to be considered for the post of Group (Ka). Out of 43 Sanctioned posts, 27 posts were already filled up in accordance to the existing rule for which there is no dispute and on the date of commencement of the Rules 2011 i.e. on 26th May, 2011 only 16 posts were vacant which were to be filled up in accordance to the Rules 2011. According to him under the Rules 2011 the vacant posts are to be filled up in accordance to the Rules 2011 which provides that 50% from direct recruitment, 30% from Seasonal Assistant Wasil Baqi Nawis and 20% from Group D employees. On query being made by the Court that what is basis of reservation of 4 posts kept permanently vacant. He is not able to explain the reason for keeping 4 posts vacant. He further submitted that the order of the learned Single Judge apportioning 16 vacant posts in the ration of 3:2 i.e. 10 posts for Seasonal Assistant Wasil Baqi Nawis and 6 for group D employees is not justified and not in accordance to the Rules 2011. 16. We have considered the rival submissions, perused the impugned order and material brought on record. 17. The undisputed facts are that the 43 posts for Group (Ka) were sanctioned in the Collectorate of Saharanpur. Rules 2011 commenced on 26th May, 2011. The Rule has been given effect on the day it has been notified i.e. on 26th May, 2011. It is not retrospective in nature. On the date of the commencement of Rules 2011 as against 43 sanctioned posts, 27 were already filled up and only 16 posts were vacant to be filled. We are of the view that after commencement of Rules 2011, 16 vacant posts were to be filled up in accordance to the Rules 2011. Rules 2011 provides that the post of Group (Ka) be filled 50% by direct recruitment, 30% from Seasonal Assistant Wasil Baqi Nawis and 20% from Group D employees. We are of the view that after commencement of Rules 2011, 16 vacant posts were to be filled up in accordance to the Rules 2011. Rules 2011 provides that the post of Group (Ka) be filled 50% by direct recruitment, 30% from Seasonal Assistant Wasil Baqi Nawis and 20% from Group D employees. Thus, in accordance to the Rules 2011, 16 posts were to be filled, 50% from direct recruitment, 30% from Seasonal Assistant Wasil Baqi Nawis and 20% from Group D posts. 18. We do not find in the Rules that there is any provision that out of vacant posts some posts are to be kept vacant permanently. Therefore, we are of the view that in the impugned order dated 26.11.2011 the observation that 4 posts are to be kept permanently vacant is without any basis and that part of the order is liable to be set aside. We are of the view that 16 vacant posts as existed on 26th May, 2011, the date of commencement of Rules 2011 are to be filled up, 50% by direct recruitment, 30% from the Seasonal Assistant Wasil Baqi Nawis and 20% from Group D employee. 19. We find that there is no basis for apportionment of the 16 posts in the ratio of 3:2 giving 10 posts to Seasonal Assistant Wasil Baqi Nawis and 6 posts to the Group D employees as observed by the learned Single Judge. 20. The appeal is accordingly disposed of with the aforesaid observations and direction. The authorities are directed to act in accordance to the observations made above. ——————