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Allahabad High Court · body

2017 DIGILAW 2921 (ALL)

CHANDRA KRISHNA PANDEY v. STATE OF U. P.

2017-12-14

SIDDHARTH

body2017
JUDGMENT Hon’ble Siddharth, J.—Heard Ms. Akanksha Sharma, learned Counsel for the petitioner and Sri Nisheeth Yadav learned Counsel for the respondents. 2. The petitioner has filed the above noted writ petition, praying for a direction to the respondents to issue appointment letter to the petitioner on the post of Executive Officer, Grade-III, instead of Executive Officer, (Nagar Panchayat) by considering 1 post to be reserved for ex-serviceman in the category of Executive Officer, Grade-III, under the examination of U.P. Combined Lower Subordinate Examination, 2013. A further direction prohibiting the respondents from issuing appointment letters on 3 vacant posts in the category of Executive Officer, Grade-III has also been sought. 3. The brief facts of the case are that the petitioner, who is an ex-servicemen, retired on 31.8.2013 and applied for the post of Executive Officer, Grade-III, in pursuance of an advertisement dated August, 2013, issued by the respondent No. 3, U.P. Public Service Commission, Allahabad, for holding of Combined Lower Subordinate Service (General Selection) Examination, 2013. The petitioner qualified the preliminary examination and also the main examination held on 21.12.2014 and appeared for interview on 14.12.2015. At the time of interview, it was disclosed that there are 5 posts of Executive Officer, Grade-III and 9 posts of Executive Officer, Grade-IV and 65 posts of Executive Officer (Nagar Panchayat) and the petitioner made first preference for the post of Executive Officer, Grade-III and submitted it before the Interview Board. Since 5% horizontal reservation was provided for each category posts, the preference given by the petitioner was not considered because there were only 5 posts of Executive Officer, Grade-III and 5% reservation therein would have been below one. The petitioner was selected for the post of Executive Officer (Nagar Panchayat). However, the respondent No. 2 passed an order dated 14.9.2016 issuing order of posting to Executive Officer, Grade-IV also as Executive Officer, Grade-III by referring to Government Order dated 4.7.2013, whereby the posts of Executive Officer, Grade-IV were merged with the post of Executive Officer, Grade-III. The Government Order dated 4.7.2013, issued by the State Government disclosed that the post of Executive Officer, Grade-IV was abolished and there was only post of Executive Officer, Grade-III in the Local Bodies of the State of U.P. and the respondent No. 2, Director, Local Bodies, U.P., Lucknow was accordingly informed by the State Government. The Government Order dated 4.7.2013, issued by the State Government disclosed that the post of Executive Officer, Grade-IV was abolished and there was only post of Executive Officer, Grade-III in the Local Bodies of the State of U.P. and the respondent No. 2, Director, Local Bodies, U.P., Lucknow was accordingly informed by the State Government. By virtue of merger of the posts of Executive Officer, Grade-IV and Executive Officer, Grade-III, the number of posts advertised for Executive Officer, Grade-III, were actually fourteen in number and if 5% of the seats for ex-servicemen would have been reserved then it would have exceeded 0.5 and 1 seat for Executive Officer, Grade-III would have been filled from the category of ex-servicemen. The petitioner being ex-servicemen was deprived of opportunity of such an appointment. The Government Order dated 4.7.2013 was issued much before the advertisement in August, 2013 and therefore, the respondent No. 3 should have been informed by respondent No. 2 not to hold selection for post of Executive Officer, Grade-IV and include such posts in the category of Executive Officer, Grade-III. The action of the respondents is illegal and since the petitioner has not been granted appointment till date and hence this writ petition. 4. The respondent No. 2, Director, Local Bodies, U.P., Lucknow has filed his Counter-affidavit stating that by means of Government Order dated 4.7.2013 in pursuance of the recommendation made through 13th report of Pay Commission (2008) and as per the decision taken by the Government Order dated 21.6.2013, the nomenclature, pay band and cadre structure of the posts of various categories of U.P. Local Bodies/Water Corporations have been reconstituted with immediate effect and accordingly 30 posts of Executive Officer, Grade-III and 88 posts of Executive Officer, Grade-IV have been merged. For the post of Executive Officer, Grade-III, pay band of Rs.9300-34800, Grade Pay Rs.4200 has been sanctioned and provision has been made to fill up these posts through the posts of Executive Officer, Nagar Panchayat, having rendered 7 years service. Previously, as per Rule-6(3) read with Appendix-3 of U.P. Palika (Centralized) Service Rules, 1966, 50% posts of Executive Officer, Grade-III and Executive Officer, Grade-IV were filled through direct recruitment and rest through promotion. Accordingly, the respondent No. 2 by means of letter dated 19.11.2012 had sent requisition to the respondent No. 3 against 5 vacant posts of Executive Officer, Grade-III and 9 vacant posts of Executive Officer, Grade-IV. Accordingly, the respondent No. 2 by means of letter dated 19.11.2012 had sent requisition to the respondent No. 3 against 5 vacant posts of Executive Officer, Grade-III and 9 vacant posts of Executive Officer, Grade-IV. In pursuance of the aforesaid requisition, the State Government vide letters dated 11.6.2016 and 3.6.2016 communicated the U.P. Public Service Commission and the Commission in turn forwarded the list of selected candidates recommending their appointment vide order dated 14.9.2016. The Government Order dated 4.7.2013 is fully in force and no requisition has been sent by the respondent No. 2 for the vacancies occurring thereafter. The writ petition filed by the petitioner is therefore devoid of merit and deserves to be dismissed. 5. The respondent No. 3, U.P. Public Service Commission, Allahabad, has filed its Counter-affidavit stating that an Advertisement No. A-4/E-1/2013 dated 18.9.2013 for selection on various posts of different Departments through Combined Lower Subordinate Services Examination, 2013 was issued by the U.P. Public Service Commission and application were invited from eligible candidates possessing requisite qualifications for respective posts as contained in the advertisement. Petitioner alongwith other candidates applied for appearing in the examination in question. Petitioner applied under ex-serviceman category. Petitioner cleared all the three stages of examination, namely preliminary, main examination and interview. The final result of the aforesaid examination was declared and the petitioner was allotted/allocated the post of Executive Officer Grade-IV on the basis of his merit and preference under Ex-Servicemen category. 6. There were 05 posts of Executive Officer Grade-III and 09 posts of Executive Officer Grade-IV. Later on State Government vide Government Order dated 4.7.2013 decided to merge the posts of Executive Officer Grade-IV in Executive Officer Grade-III. Petitioner’s claim is that merger of Executive Officer Grade-IV in Grade-III was made by the State Government, therefore, there were 14 posts of Executive Officers Grade-III, 0.6 post goes to Ex-Serviceman which should be treated as 01 (in place of 0.5) in rounding off formula. So petitioner was entitled to be selected on the post of Executive Officer Grade-III instead of Executive Officer, Grade-IV. The Government Order dated 19.12.1991 explicitly provides that upto 1.99 the vacancy shall be treated as 01. It has been further stated that the requisition for selection on the post of Executive Officer, Grade-IV was sent by the State Government/Department pursuant to which selection was made by the Commission and recommendation was sent. The Government Order dated 19.12.1991 explicitly provides that upto 1.99 the vacancy shall be treated as 01. It has been further stated that the requisition for selection on the post of Executive Officer, Grade-IV was sent by the State Government/Department pursuant to which selection was made by the Commission and recommendation was sent. Merger of posts falls within the exclusive jurisdiction of the department and the State Government. Hence the claim of petitioner is not tenable and writ petition being devoid of merits is liable to be dismissed. 7. The petitioner has filed Rejoinder-affidavit stating that once the post of Executive Officer, Grade-IV was merged in the post of Executive Officer, Grade-III, before the issuance of the advertisement dated 19.8.2013, no selection could have been processed on the post of Executive Officer-Grade-IV. The requisition cannot supersede the Government Order dated 4.7.2013 since it is settled law that no selection can be made on non existent posts/vacancies. Therefore, the total number of vacancies for the post of Executive Officer, Grade-III should have been calculated by adding the post of Executive Officer (Grade-IV) and petitioner should have been considered for the post of Executive Officer Grade-III by applying 5% reservation for ex-servicemen category to which the petitioner belongs. 8. The learned Counsel for the petitioner has made the following submission: 1. Post of Executive Officer grade IV was merged before initiation of selection process: It is admitted case that the post of Executive Officer,Grade-IV, was merged by virtue of G.O. dated 4.7.2013 while the advertisement was issued on 19.8.2013. The copy of the G.O. dated 4.7.2013 was also sent to the respondent No. 3 (Pg.54) (Annexure-7). Therefore, the provisions of the G.O. were binding upon respondent No. 3 and it should have rectified the vacancies of Executive Officer, Grade IV, during selection. It is also relevant to point out that the advertisement itself states that no requisition for the post of executive officer, Grade -IV, was received at the time of publication of the advertisement i.e., on 19.8.2013. 2. Purpose of requisition is limited for calculation of vacancies. Sending of requisition does not confer a right to hold selection on a post which has been abolished. As per the respondent’s case the requisitions were sent separately for both categories of post therefore they are bound by the requisition and had right to hold selection on the posts of Executive Officer, Grade-IV. Sending of requisition does not confer a right to hold selection on a post which has been abolished. As per the respondent’s case the requisitions were sent separately for both categories of post therefore they are bound by the requisition and had right to hold selection on the posts of Executive Officer, Grade-IV. In reply to the aforesaid argument it is to be clarified that the only purpose of sending requisition is to calculate the vacancies for issuance of advertisement. It does not confer a right to the selecting authority to hold a selection on a post which has been abolished before issuance of the advertisement i.e., the initiation of the selection process. 3. No selection can be held on a non existent post After the issuance of Government order dated 4.7.2013 the post of Executive Officer, Grade IV, having been merged in the post of Executive Officer, Grade III, was not in existence at the time of issuance of advertisement. Therefore holding selection separately for the post of Executive Officer, Grade-III, and Executive Officer, Grade IV, was in violation of the Government Order. Moreover the said G.O. was well within the knowledge in the respondent No. 3. 4. After merger of post, vacancies of Executive Officer, Grade-IV, ought to have been included in the vacancies of Executive Officer, Grade-III. Once the post of Executive Officer, Grade IV, has been merged in the post of Executive Officer, Grade-III, the respondents were bound to add the 9 posts of Executive Officer, Grade IV, in the post of Executive Officer, Grade III and total number of post for Executive Officer, Grade III should have been treated as 14 instead of 5. 5. The respondent applied the horizontal reservation overall, not category wise. During the course of the argument reliance has been placed by counsel for the respondent on an order passed by Hon’ble High Court in W.P. No. 40695/2005, sending reference to the larger bench. That order has no relevance for the purposes of adjudication of the issue involved in the present petition because it is not the case of either of the parties in the present litigation. That order has no relevance for the purposes of adjudication of the issue involved in the present petition because it is not the case of either of the parties in the present litigation. Moreover in the selection in question the respondents themselves applied overall horizontal reservation, not category wise, which is evident from the select list of Executive Officer (Nagar Panchayat) where 65, out of which three candidates, including the petitioner, have been selected under ex-servicemen category and all the three belong to general category. This goes without saying that the horizontal reservation has been applied overall and not category wise. Therefore when 5% reservation is applied out of 14 posts of Executive Officer, Grade-III, it comes to the figure of 0.7 and after applying principle of rounding off it becomes one post for ex-serviceman. Hence the petitioner is entitled for the same. 6. Principle of rounding off in horizontal reservation has been upheld by the Hon’ble Supreme Court on 18.5.2016. Division Bench of this Hon’ble Court in the case of Anoop Mishra v. State of U.P. and another, 2014(1) ADJ 27 , regarding the dispute of reservation in selection on the post of Assistant Commissioner (Trade/Commercial Taxes) in the State Combined Upper Subordinate Examination, 2009 applied the principle of rounding off and held that where the reservation exceeds 0.5 then principle of rounding off will apply and the fraction will be treated as complete. The aforesaid decision stands affirmed by the Hon’ble Supreme Court and the Special Leave Petition No. 14073/2014, filed by the State Government, was dismissed on 18.5.2016. Therefore the petitioner is also entitled for the benefit of rounding off. 7. One post of Executive Officer, Grade III, is still lying vacant. Out of 14 posts of the Executive Officer, Grade III, 11 candidates were appointed vide order dated 14.9.2016 and further two candidates were appointed vide order dated 9.3.2017 and one post of Executive Officer, Grade III, is still vacant therefore the petitioner can be offered appointment on the said vacant post. 9. It is also relevant for consideration that though the petitioner has been appointed on the post of the Executive Officer (Nagar Panchayat) but till date he has not been issued any appointment letter for any post. 10. 9. It is also relevant for consideration that though the petitioner has been appointed on the post of the Executive Officer (Nagar Panchayat) but till date he has not been issued any appointment letter for any post. 10. The Counsel for the respondent No. 3, U.P. Public Service Commissioner, Allahabad has submitted that the Commission issued the advertisement dated 18.9.2013 in the light of the requisition dated 19.11.2012 received from the State Government. As per Chapter-V, Rule-50 of the U.P. Public Service Commission (Procedure & Conduct of Business) Rules, 2011, the Commission acts upon the requisition as received from the State Government. It is undisputed that the merger of the posts was made on 4.7.2013, when the requisition was received by the Commission on 19.11.2012. Even if, the argument of the petitioner that after the merger of both the cadres, Executive Officer, Grade-III and Executive Officer, Grade-IV, the total number of posts becoming 14 and application of 5% reservation applicable to the ex-servicemen category, the petitioner will not be benefited in view of the Judgment in the case of Rajeev Kumar v. State of U.P. and others, 2010(7) ADJ 608 , wherein, in paragraph No. 9, it has been observed that horizontal reservation should be category wise and not compartment wise. It has been further submitted that in view of conflicting decision in the case of Rajeev Kumar (supra) and in the earlier case of Shiv Shankar Singh v. Public Service Commission, Allahabad, 1996 AWC 1501 and in the case of Brijendra Deo Mishra v. Public Service Commissioner, U.P., Allahabad, 1997 (1) AWC 84 , the Division Bench in Writ-A No. 40695 of 2005, has referred the matter of horizontal reservation for being decided by larger Bench on 1.10.2015, which has not been decided till date. As per the contention of the counsel of the petitioner if compartment wise reservation is being granted to all categories of horizontal reservation then there would be hardly any space for other categories to be offered appointment therefore even after clubbing the post of Executive Officer, Grade-III and Executive Engineer Grade-IV, resulting to 14 posts, if category wise reservation is applied it would be less than 5 per cent posts and therefore no benefit could be given to the petitioner. On 28.3.2015 the Chief Secretary of the Government has further issued circular whereby principle of a rounding off has not been made applicable to the calculation of the vacancies on the basis of their percentage. It has been further stated that the fractions shall be ignored and only full number shall be taken into consideration. Supposing the percentage of reserved vacancy comes to 1.5, then only one post shall be reserved. Where the percentage is even to 1.99 then the reserved posts shall remain one in number and the fraction of 0.99 shall be ignored. 11. After considering the pleadings of the parties and considering the submissions made on behalf of petitioner and the respondent No. 3, it is observed that the respondent No. 1 issued the requisition dated 19.11.2012 to the respondent No. 3 for making advertisement and selection on the posts of Executive Officer, Grade-III and Executive Officer, Grade-IV and did not subsequently got the requisition amended in the light of the Government Order dated 4.7.2013, whereby both the aforesaid posts were merged into single post of Executive Officer, Grade-III. Therefore, the respondent No. 3, Commission issued the advertisement dated 19.8.2013 in accordance with the requisition dated 19.11.2012 uninfluenced by the Government Order dated 4.7.2013. The contention of the Counsel for the respondent No. 3 in this regard is correct that the merger of the posts does not lies within the domain of the Commission, rather it lies within the domain of the State Government or the department concerned. Therefore, the irresistible conclusion would be that the respondent No. 3 acted within the realm of its authority. 12. The fault lies on the part of the respondent Nos. 1 and 2, State Government and Director Local Bodies, U.P., Lucknow, respectively, who never made request for amending the requisition dated 19.11.2012 in the light of the Government Order dated 4.7.2013, which merged the posts of Executive Officer, Grade-III and Executive Officer, Grade-IV. This resulted into selection on both the posts by the Commission, when the post of Executive Officer, Grade-IV had become non existent at the time of the holding even of the preliminary examinations on 6.4.2014. Had the correct number of vacancies been informed, the petitioner would have got a chance of consideration under the 5% quota of ex-servicemen, in the total number of 14 posts of Executive Officer, Grade-III. 13. Had the correct number of vacancies been informed, the petitioner would have got a chance of consideration under the 5% quota of ex-servicemen, in the total number of 14 posts of Executive Officer, Grade-III. 13. The argument of the Counsel for the respondent No. 3, Commission, that in view of the Circular of the State Government dated 28.8.2015, the whole number shall only be counted and not the fraction of the total reserved vacancies for a particular category, merits consideration. 14. So far as the principle of rounding off is concerned, the Supreme Court in the case in State of U.P. and another v. Pawan Kumar Tiwari and others, (2005) 2 SCC 10 , has held that the rule of rounding off is based on logic and common sense. Para 7 of the judgment reads as follows: “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 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.” 15. In the case of Shiv Prasad v. Government of India and others, (2008) 10 SCC 382 , the Supreme Court while dealing with vertical reservation and horizontal reservation has held as follows: “25. In Indra Sawheny (I), Justice Jeevan Reddy, J. dealt with this aspect. His Lordship observed that there are two types of reservations; (i) vertical reservations; and (ii) horizontal reservation. They must be so applied as not to exceed the percentage of reservations which is permissible under law. This can be done by “interlocking reservations”. His Lordship proceeded to state: “812.... There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservations. There are two types of reservations, which may, for the sake of convenience, be referred to as ‘vertical reservations’. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4) may be called vertical reservations whereas reservations in favour of physically handicapped (under clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category, if he belongs to SC category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (OC) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains and should remain the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure. 16. In Bhudev Sharma v. District Judge, Bulandshahr and another, (2008) 1 SCC 233 , the Supreme Court referring to the facts of that case held that the 2% quota fixed for physically handicapped persons if applied to 30 posts, the figure would come to 0.6 and since 0.6 is more than half, it should be rounded off to 1. Paras 2 and 3 of the said judgment read as follows: “2. The appellant is a blind man. He appeared in the recruitment test held in the year 1992 for selecting candidates for Class-III Posts in Bulandshahr Judgeship in U.P. However, he was not selected and hence he filed a writ petition which was allowed by a learned Single Judge of the Allahabad High Court by his judgment dated 25.9.1997. Against that judgment the State Government filed a letters patent appeal which has been allowed by the impugned judgment by the Division Bench. Hence this appeal. 3. The appellant has relied on G.O. dated 26.8.1993 which is Annexure P-1 to this appeal. That G.O. states that the U.P. Government has reserved 2 per cent posts for physically handicapped persons for direct recruitment in all groups of Government services. Hence this appeal. 3. The appellant has relied on G.O. dated 26.8.1993 which is Annexure P-1 to this appeal. That G.O. states that the U.P. Government has reserved 2 per cent posts for physically handicapped persons for direct recruitment in all groups of Government services. The physically handicapped persons are those who are blind, deaf and dumb and otherwise handicapped. There were altogether 30 posts for which the selection was held. 2 per cent of 30 is 0.6. Since 0.6 is more than half we round it off and hold that one out of the 30 posts is reserved for physically handicapped persons. Since there was no other physically handicapped person who applied, in our opinion, the appellant was entitled to the post reserved for physically handicapped persons.” 17. A Division Bench of this Court in the case of Dr. Rajesh Kumar Tiwari v. State of U.P. and others, 2006(7) ADJ 21 (DB); 2006(4) ESC 2494 (All)(DB), while dealing with the question of rounding off with regard to the quota fixed for dependents of freedom fighters has held as follows: “13. In the present case, it is admitted fact that 82 vacancies were advertised and the quota fixed for the dependents of freedom fighters is 2%. Thus, 2% of 82 being more than 1.5 would result in to 2 posts in that quota. The law with regard to rounding off is very clear and well-settled. Where the value is one-half or more, it has to be rounded off to the next whole number and where it is less than one-half, it has to be ignored. In the present case, 2% of 81 comes to 1.62. It being more than one-half, the value to be taken is 2. This view is supported by the decision of the Hon’ble Apex Court in the case of State of U.P. and another v. Pawan Kumar Tiwari and others” 18. This question came up before the Lucknow Bench of this Court for consideration in Writ Petition (S.B.) No. 1049 of 2010, Atul Awasthi v. U.P. Cooperative Institutional Service Board, Lucknow through its Chairman and another and the Division Bench of this Court in paras 5, 6 and 7 held as follows: “5. This question came up before the Lucknow Bench of this Court for consideration in Writ Petition (S.B.) No. 1049 of 2010, Atul Awasthi v. U.P. Cooperative Institutional Service Board, Lucknow through its Chairman and another and the Division Bench of this Court in paras 5, 6 and 7 held as follows: “5. Learned counsel for the respondents has argued that the quota provided to dependents of freedom fighter, ex-serviceman and physically handicapped as per rules, is a horizontal reservation and it has to be worked out on the basis of the vacancies advertised and not on the basis of the total cadre strength. It is further submitted that representation of the petitioner was rightly rejected. 6. Now the short question to be determined in this writ petition is whether 2% quota of freedom fighter has to be calculated on the basis of the total cadre strength or on the basis of the actual vacancies. 7. The Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act, 1993 (in short referred to as U.P. Act No. 4 of 1993) was promulgated and came in to force with effect from 30.12.1993. According to Section 3 of the U.P. Act No. 4 of 1993, it was provided that there shall be reserved 5% of vacancies at the stage of direct recruitment in favour of the physically handicapped, dependents of freedom fighters and ex-servicemen. Sub-section (2) of Section 3 of U.P. Act No. 4 of 1993 provided that the respective quota of the categories shall be such as the State Government may from time to time determine by a notified order. Further, sub-section (3) of Section 3 of U.P. Act No. 4 of 1993 provided the manner in which the reservation was to be applied. For sake of convenience, Section 3 of U.P. Act No. 4 of 1993 is quoted hereunder: 3. Reservation of vacancies in favour of physically handicapped etc.—(1) in public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacancies at the stage of direct recruitment in favour of: (i). physically handicapped. (ii). dependents of freedom fighters, and (iii). Ex-servicemen (2). The respective quota of the categories specified in sub-section (1) shall be such as the State Government may from time to time determine by a notified order. (3). physically handicapped. (ii). dependents of freedom fighters, and (iii). Ex-servicemen (2). The respective quota of the categories specified in sub-section (1) shall be such as the State Government may from time to time determine by a notified order. (3). The persons selected against the vacancies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments, if he belongs to backward classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments. (4). For the purpose of sub-section (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be: Provided that at no point of time the reservation shall, in the entire strength of cadre, or service, as the case may be, exceed the quota determined for respective categories. (5). The vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment.” 19. The learned Counsel for the petitioner has relied upon the Judgment of this Court in the case of Anoop Mishra v. State of U.P. and another, 2014(1) ADJ 27 (DB), to counter the argument aforesaid. It has been held by this Court in the above Judgment that the principle of rounding of of a fraction shall apply while computing the percentage of reserved post for any particular category. The Division Bench of this Court has discussed the relevant law and precedent in arriving at the conclusion that the rounding of a fraction is permissible for calculating the percentage of reserved posts in horizontal reservation. 20. Therefore, the argument of the respondent No. 3 that in view of the Government Order dated 28.8.2015 of the State Government only the full number shall be counted and fraction shall be ignored , while computing the percentage of reserved posts for a particular category is not correct, in view of the above discussions. 21. 20. Therefore, the argument of the respondent No. 3 that in view of the Government Order dated 28.8.2015 of the State Government only the full number shall be counted and fraction shall be ignored , while computing the percentage of reserved posts for a particular category is not correct, in view of the above discussions. 21. Further, the argument of the Counsel for the respondent No. 3 that the reference regarding the application of horizontal reservation in respect of various categories provided therein has been made by the Division Bench in the case of Ajay Kumar (supra), therefore, its decision should be awaited is not correct. In the present case, there is no such issue involved . The respondents have applied over all horizontal reservation and not category wise reservation. 22. The argument of the petitioner that the selections have been made by the Commission on the non existent 9 posts of the Executive Officer, Grade-IV and if the 5 posts of Executive Officer, Grade-III are added, the total posts come to 14 and 5% thereof comes to 0.7, which on being rounded of becomes one post for ex-serviceman quota, appears to be correct, in view of the case laws considered above. 23. In view of the above discussions, it has become clear that 1 post out of 14 posts of Executive Officer, Grade-III, fell in the quota for ex-servicemen category and the petitioner was required to be considered for appointment on that post, keeping in view the Principle of Horizontal Reservation for the particular category. 24. The respondent No. 1 is directed to consider the appointment of the petitioner, on the post of Executive Officer, Grade-III, on the only post found available under the ex-servicemen category of Horizontal Reservation within a period of 1 month from the date of presentation of the certified copy of this order before him. 25. The writ petition is allowed to the extent stated above. No orders as to costs.