JUDGMENT : Heard learned counsel for the parties. 2. According to petitioners, they possess all requisite qualification for appointment as Pharmacist in Department of Ayurvedic & Unani Services. Petitioners belong to Scheduled Caste category. Their grievance is that in the advertisements issued by respondent no. 2 inviting applications for the post of Pharmacist in recent past, adequate number of posts were not reserved for persons belonging to Scheduled Caste. This, according to them, violates Reservation Policy of the State. They have challenged the advertisement dated 26.09.2020, on the ground that out of 71 posts, which were advertised, only one post is reserved for S.C. category. 3. Perusal of impugned advertisement reveals that it was issued for amending earlier advertisement, issued on 24.09.2020. In the earlier advertisement (Annexure-5 to the writ petition), no post was reserved for persons belonging to Scheduled Caste and Other Backward Classes, while in the impugned advertisement, one post is reserved for S.C. category persons. 4. The relief sought by petitioners in this writ petition are as follows:- “I. issue a writ, or order or direction in the nature of certiorari quashing the amended advertisement no. 4472/G-23/2020-2021/Adhi dated 26.09.2020 issued by the respondent no. 2 (As Annexure No. 6). II. Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents to comply the roster of reservation on the post of Ayurvedic Pharmacist as per the prescribed law.” 5. Learned counsel for the petitioners contends that 19% posts in State services are required to be reserved for persons belonging to Scheduled Caste as per the Reservation Policy, therefore out of 71 vacancies, which were advertised, at least 19%, i.e., 13 posts should be reserved for Scheduled Caste category persons. Thus according to him, respondents have acted contrary to Reservation Policy of the State by not reserving adequate number of posts for Scheduled Caste category persons. 6. A counter affidavit has been filed by Director, Ayurvedic & Unani Services (respondent no. 2). In paragraph no. 4 of the counter affidavit, vacancy position in the cadre of Pharmacist on the date of advertisement, i.e., 26.09.2020 has been given in tabular form. 6. A counter affidavit has been filed by Director, Ayurvedic & Unani Services (respondent no. 2). In paragraph no. 4 of the counter affidavit, vacancy position in the cadre of Pharmacist on the date of advertisement, i.e., 26.09.2020 has been given in tabular form. From perusal of the same, it is revealed that as on 26.09.2020, there were total 692 sanctioned posts of Pharmacist in the department; out of which, 130 were held by persons belonging to Scheduled Caste category; 27 were held by persons belonging to Scheduled Tribe category and 97 posts were held by persons belonging to Other Backward Classes. It further reveals that as per Reservation Policy, against 692 sanctioned posts of Pharmacist, 131.48 are required to be reserved for Scheduled Caste; 27.68 are required to be reserved for Scheduled Tribe and 96.88 are required to be reserved for Other Backward Classes. By rounding off the number of posts, which are liable to be reserved for S.C., S.T. & O.B.C., the figure comes to 131 for S.C., 28 for S.T. and 97 for O.B.C. category persons. 7. In the supplementary counter affidavit dated 06.01.2022 filed by respondent no. 2, it is reiterated that, as per Reservation Policy, 131 posts can be reserved for S.C. category persons and presently 130 out of 692 posts are held by persons belonging to the said category. It is further stated that since only one post reserved for S.C. category is vacant, therefore in the impugned advertisement, one post has been reserved for S.C. category person. Paragraph no. 5 of the supplementary counter affidavit is reproduced below:- “5. That in reply to the contents of para no. 3 of the supplementary affidavit it is submitted here that the contention of the petitioner under the paragraph in reply that due to the upgradation of Ayurvedic Hospitals in the year 2016, new posts of Ayurvedic Pharmacist in the Department has been created, is misleading, rather the true fact is that vide government order no. 903/XXXX/2016-148/2011 dated 11.08.2016, 58 posts of Ayurvedic Pharmacists, which has been sanctioned earlier have been upgraded to the post of Chief Pharmacist, as such there is a short fall of 58 posts of Pharmacist out of the earlier sanctioned post of Ayurvedic Pharmacist and promotions have been made on the post of Chief Pharmacist from the Ayurvedic Pharmacist on the basis of seniority. It is to be clarified here that according to Rules reservation is not applicable in the promotions, as far as the contention of the petitioner in the paragraph under reply that 192 posts for Ayurvedic Pharmacist and 5 posts of Unani Pharmacist in AYUSH Wing in the year 2017 has been created, is incorrect rather the true fact is that vide government order dated 21.10.2016, 90 posts have been created and vide government order dated 02.01.2017, 90 posts have been created in AYUSH wing, as such till date total 692 posts of Ayurvedic Pharmacists are sanctioned in the department and as per the Reservation Act, 19% posts reserved for Schedule Caste out of 692 posts would be 131.48 posts (692x19/100=131.48). It is not out of context to mention here that 130 Ayurvedic Pharmacist (Schedule Caste Category candidates) are working against 130 posts reserved for Schedule Caste and only 1 post is vacant, which has been advertised in the advertisement dated 26.09.2020, but is subjected under the Stay Order passed by this Hon’ble Court. It is relevant to mention here that in the vacant posts appointments will be done immediately after vacation of the Stay Order, besides this in all the vacant posts by any reason like promotion, retirement, resignation, administrative and punitive action or accidental death, to whichever reserved category the post of Ayurvedic Pharmacist is related, that post will be filled in accordance with the roaster from the candidate of that particular category. For the bare perusal of this Hon’ble Court a true/photocopy/correct typed version of the detail of sanctioned posts of Pharmacist in the Department is being filed herewith and marked as Annexure No. SCA-1 to this affidavit.” 8. Perusal of document enclosed as Annexure No.1 to the supplementary counter affidavit however reveals that there are 692 sanctioned post of Ayurvedic Pharmacist and 5 sanctioned post of Unani Pharmacist. Thus the total number of sanctioned posts of Pharmacist in the department increases to 697. If there is a unified cadre of Ayurvedic and Unani Pharmacist, then the number of posts reserved for S.C. category would go up to 132. 9. Learned counsel for the petitioners submits that the advertisement dated 26.09.2020 is flawed, as the roster prepared by Uttarakhand Government for applying reservation in appointment by direct recruitment has not been followed. If there is a unified cadre of Ayurvedic and Unani Pharmacist, then the number of posts reserved for S.C. category would go up to 132. 9. Learned counsel for the petitioners submits that the advertisement dated 26.09.2020 is flawed, as the roster prepared by Uttarakhand Government for applying reservation in appointment by direct recruitment has not been followed. Thus according to him, persons belonging to general and other categories cannot be appointed against slots/roster points meant for S.C. category persons. 10. The submission made by learned counsel for the petitioners is unacceptable, if the stand taken by respondent no. 2 in his counter affidavit is accepted, then the challenge to the advertisement dated 26.09.2020 is without any substance. The roster is a device, which is used for ensuring that persons belonging to reserved and unreserved categories get their due share in public services, as per the Reservation Policy of the State. Roster operates as a running account, however, once the total cadre has full representation of S.C., S.T. and Backward Classes in accordance with the Reservation Policy, then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. Petitioners want the roster to be operated even though full representation is given to Backward Classes and, out of 131 posts reserved for S.C. category candidates only one post is presently vacant. 11. Reservation to S.C., S.T. and Backward Classes in public services of the State is governed by the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Sub-section (5) of Section 3 of the said Act reads as under:- “3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. 11. Reservation to S.C., S.T. and Backward Classes in public services of the State is governed by the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Sub-section (5) of Section 3 of the said Act reads as under:- “3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. … … (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.” 12. From the aforesaid provision, it is apparent that roster prepared by Uttarakhand Government for applying reservation in appointment has to be implemented in the form of a running account from year to year, however, once the situation arrives when different reserved categories are given adequate representation as per Reservation Policy, then operation of roster/ running account has to come to an end and when a vacancy arises thereafter, the same has to be filled from amongst the persons belonging to the category to which the post belongs in the roster. 13. A constitution Bench of Hon’ble Supreme Court in the case of R.K. Sabharwal and others v. State of Punjab and others, reported in (1995) 2 SCC 745 while considering interplay of reservation policy and the roster has held that purpose of maintaining running account in the form of roster is to make sure that Scheduled Castes, Scheduled Tribes and Backward Classes get their percentage of reserved posts and further that concept of running account has to be so interpreted that it does not result in excessive reservation. Paragraph nos. 5, 6, 7, 8 & 9 of the said judgment are extracted below for ready reference: “5. We see considerable force in the second contention raised by the learned counsel for the petitioners. Paragraph nos. 5, 6, 7, 8 & 9 of the said judgment are extracted below for ready reference: “5. We see considerable 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 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 Castes 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 Castes. 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 up to 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 a 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 population. 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 population. The numerical quota of posts is not a 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 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. 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 there shall neither be shortfall nor excess in the percentage of reservation. 6. 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. 7. 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. 7. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong. Jeevan Reddy, J. speaking for the majority in Indra Sawhney v. Union of India, observed as under: (SCC p. 737, para 814) “Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes i.e. 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Scheduled Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all Backward Classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age-barred and ineligible. Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. It must be remembered that the equality of opportunity guaranteed by clause (1) is to each individual citizen of the country while clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of the cadre, service or the unit as the case may be.” 8. The quoted observations clearly illustrate that the rule of 50% a year as a unit and not the entire strength of the cadre has been adopted to protect the rights of the general category under clause (1) of Article 16 of the Constitution of India. These observations in Indra Sawhney case are only in relation to posts which are filled initially in a cadre. The operation of a roster, for filling the cadre-strength, by itself ensures that the reservation remains within the 50% limit. Indra Sawhney case is not the authority for the point that the roster survives after the cadre-strength is full and the percentage of reservation is achieved. 9. A Division Bench of the Allahabad High Court in J.C. Malik v. Union of India interpreted Railway Board’s circular dated 20-4-1970 providing 15% reservations for the Scheduled Castes. The High Court held that the percentage of reservation is in respect of the appointment to the posts in a cadre. On the basis of the material placed before the High Court it reached the conclusion that if the reservation is permitted in the vacancies after all the posts in a cadre are filled then serious consequences would ensue and the general category is likely to suffer considerably. We see no infirmity in the view taken by the High Court.” 14. In the case of M. Nagaraj and others v. Union of India and others, reported in (2006) 8 SCC 212 , a Constitution Bench of Hon’ble Supreme Court, while dealing with the question of equality of opportunity in public employment has held in para 119 that “if in a given case the court finds excessive reservation under the State enactment then such an enactment would be liable to be struck down since it would amount to derogation of the above constitutional requirements”. Relevant extract of paragraph no. Relevant extract of paragraph no. 43 of the said judgment is reproduced below:- “43. …Therefore, the concept of “equality of opportunity” in public employment concerns an individual, whether that individual belongs to the general category or Backward Class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a Backward Class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimisation of these conflicting interests and claims.” 15. The contention of the petitioners that roster prepared by the State Government must be applied whenever appointments are made in a cadre, if accepted, may result in excessive reservation in favour of S.C., S.T. or Backward Classes, thus violating right to equality of opportunity to persons belonging to other categories. This aspect has been dealt with by Hon’ble Supreme Court in the case of Jitendra Kumar Singh and another v. State of U.P. and others, reported in (2010) 3 SCC 119 . Paragraph no. 42 of the said judgment is extracted below:- “42. In Post Graduate Institute of Medical Education & Research v. Faculty Assn. (PGIMER case) in para 32 the same principle was reiterated as under: “32. Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji case, Devadasan case and Sabharwal case. Even in Indra Sawhney case the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram and C.A. Rajendran v. Union of India. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram and C.A. Rajendran v. Union of India. It has been indicated in Indra Sawhney case that clause (4) of Article 16 is not in the nature of an exception to clauses (1) and (2) of Article 16 but an instance of classification permitted by clause (1). It has also been indicated in the said decision that clause (4) of Article 16 does not cover the entire field covered by clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has also indicated that in the interests of the backward classes of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.” These observations make it abundantly clear that the reservations should not be so excessive as to render the fundamental right under Article 16(1) of the Constitution meaningless. In Indra Sawhney this Court has observed as under: (SCC p. 740, para 818) “818. … In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, [shall] not result in breach of 50% rule.” Therefore, utmost care has to be taken that the 50% maximum limit placed on reservation in any particular year by this Court in Indra Sawhney case must be maintained. It must further be ensured that in making reservations for the members of the Scheduled Castes and Scheduled Tribes, the maintenance of the efficiency of administration is not impaired. 16. From the facts and figures given in the counter affidavit and supplementary counter affidavit filed by respondent no. 2, this Court is satisfied that against 131 posts reserved for S.C. category, 130 are already held by persons belonging to S.C. category and there is only one post, which is required to be filled by appointing S.C. category person. 16. From the facts and figures given in the counter affidavit and supplementary counter affidavit filed by respondent no. 2, this Court is satisfied that against 131 posts reserved for S.C. category, 130 are already held by persons belonging to S.C. category and there is only one post, which is required to be filled by appointing S.C. category person. Likewise, for Scheduled Tribe 28 posts are reserved as per Policy, out of which 27 are already held by persons belonging to Scheduled Tribe. In the advertisement, one post has been reserved for Scheduled Tribe, therefore, the advertisement does not suffer from any infirmity. 17. In such view of the matter, it cannot be said that Reservation Policy has been violated. Thus, the challenge thrown to the advertisement dated 26.09.2020 is without any substance and there is no scope for interference in the matter. 18. In the counter affidavit and supplementary counter affidavit, the cadre strength of Pharmacist is mentioned as 692, however through the document enclosed with the supplementary counter affidavit, it is revealed that besides 692 posts of Ayurvedic Pharmacist, there are 5 sanctioned posts of Unani Pharmacist. It is not known whether there exists a unified cadre of Ayurvedic and Unani Pharmacists or not. If answer to the aforesaid question is in the affirmative, then the number of posts reserved for Scheduled Caste would go up from 131 to 132. 19. In the absence of any pleading by the parties, this Court cannot record any finding on the aforesaid aspect. 20. In such view of the matter, petitioners are granted liberty to approach respondent no. 2 highlighting the aforesaid discrepancy. If petitioners make such representation within three weeks from today, respondent no. 2 shall take decision in the matter, as per law, within six weeks from the date of receipt of representation along with certified copy of this order. 21. With the aforesaid observation, writ petition stands disposed of. 22. Interim order dated 15.10.2020 is vacated. Respondents shall be at liberty to appoint the selected candidates without any further delay. Such appointment will abide by the decision taken by respondent no. 2 on petitioners’ representation.