ASHWANI TIWARI AND ANOTHERversusSTATE OF U.P. AND 2 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                   WRIT - A No. - 17088 of 2025 (leading)

Ashwani Tiwari And Another
                                                              .....Petitioner(s)
                                  Versus

State Of U.P. And 2 Others
                                                            .....Respondent(s)

Counsel for Petitioner(s)      : Harsh Dwivedi, Kamlakar Dwivedi,
                                 Mohd. Saleem Khan
Counsel for Respondent(s)      : Fuzail   Ahmad     Ansari, C.S.C.,
                                 Mahendra Narain Singh

                                  ::with::
                  WRIT - A No. - 2169 of 2026 (connected)

Manish Tiwari And 2 Others
                                                              .....Petitioner(s)
                                  Versus

State Of U.P. And 2 Others
                                                            .....Respondent(s)

Counsel for Petitioner(s)      : Krishna Datta Tiwari, Yogesh Tiwari
Counsel for Respondent(s)      : Fuzail   Ahmad       Ansari,   C.S.C.,
                                 Mahendra Narain Singh

Court No. - 33

                   HON'BLE VIKAS BUDHWAR, J.



1. Heard Shri Kamlakar Dwivedi and Shri Yogesh Tiwari, learned
counsel for the writ petitioners in the leading and the connected petition,
Shri Pramod Kumar Shrivastava, learned Additional Chief Standing
Counsel for the State, and Shri F.A. Ansari for the UP Public Service
Commission.

2. Since counter and rejoinder affidavits have been exchanged and parties
do not propose to file any further affidavit, the writ petition is being
decided at the fresh stage.

3. The case of the petitioner is that an advertisement came to be published
bearing number A-8/E-1/2025 dated 16.02.2025 by the UP Public Service
Commission inviting applications for recruitment on the post of Assistant
Prosecution Officer. The writ petitioners in the leading as well as in the
connected writ petition happen to be the law graduates who are aspirants
for recruitment on the post of Assistant Prosecution Officer (APO).
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According to the writ petitioners, the impugned advertisement is ultra
vires and is in violation of the Constitutional Bench judgment in Indira
Sawhney vs Union of India reported in (1992) Supp 3 SCC 210, as the
reservation ought to have been resorted to vacancy-wise and not post-
wise. Learned counsel for the writ petitioners have submitted that there
are glaring infirmities in the advertisement, particularly when, though as
per para 814 of the judgment of the Hon'ble Apex Court in Indira
Sawhney (supra), the reservation ought to have been applied vacancy-
wise, but in the teeth of the law laid down by the Hon'ble Apex Court, in
the said judgment, the reservation has been applied post-wise. Further
submission is that due to wrong criteria being adopted in applying
reservation, the advertisement not only becomes defective but also there
happens to be imbalance in earmarking of the vacancies/posts. It is
contended that though under the Economically Weaker Sections (EWS)
category, reservations have been made vacancy-wise, but with regard to
Unreserved, SC, ST, and OBC categories, the same has been made post-
wise based upon cadre strength. Reliance has been placed on the
judgment of the Hon'ble Apex Court in R.K. Sabharwal and others vs
State of Punjab and others, (1995) 2 SCC 745 so as to buttress the said
submission in that regard.

4. Shri Pramod Kumar Shrivastava, learned Additional Chief Standing
Counsel for the State, along with Shri Ansari for the Commission, while
countering the submissions so made by learned counsel for the writ
petitioner have submitted that none of the contentions so raised by the
counsel for the writ petitioners has any legs to stand for the simple reason
that the reservation is to be applied post-wise based upon cadre strength
and according to them with respect to the same advertisement dated
16.09.2025, which is subject matter of challenge herein, similar grounds
was raised before the Lucknow Bench of this Court in Writ A No. 11747
of 2025, Vindheshwari Pandey vs State of UP, then the coordinate Bench
of this Court had opined that reservation is to be made on the basis of
cadre strength post-wise, and the concept of vacancy has no relevance in
operating percentage of reservation. Further submission is that so far as
the reservation pertaining to EWS category is concerned, the same stands
regulated by the Uttar Pradesh Public Services (Reservation of
Economically Weaker Section) Act, 2020, according to which the 10%
reservation is relatable to the vacancies, to which recruitment are to be
made and further there is no concept of carrying forward in EWS
category. However, so far as, the reservation for SC, ST, and OBC is
concerned, the same is governed by another set of enactment being UP
Public Services (Reservation for Scheduled Castes, Scheduled Tribes, and
Other Backward Class) Act, 1994, according to which, reservation is to be
made, roster-wise, post-based and further there is a concept of carry
forward.

5. I have heard the submissions so made across the Bar and perused the
record carefully.
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                                   3


6. Records reveal that there are 580 sanctioned strength of Assistant
Prosecution Officer in the Prosecution Department of State of Uttar
Pradesh. However, as per the pleadings set forth in para 4 of the counter
affidavit filed on behalf of the second respondent, sworn by Joint Director
(Prosecution), High Court, Allahabad dated 28.01.2026, a government
order came to be issued on 25.01.2007 according to which 2% of
sanctioned vacancies stood reduced, being 569, break up whereof: 580 x
2 ÷ 100 =11, totaling to 569 vacancies.

7. A chart has been referred to in para 4 showing the details of the posts
and the vacancies under various parameters, which is quoted hereinunder:

Sl. Details                                Unreserved   OBC SC        ST EWS        Total
No.

1.   Requisite status of reservation           232      157    122 11      58       580
     against the determined 580
     sanctioned posts of Assistant
     Prosecution Officer.

3.   Requisite status after deducting 2        228       154    120   11    56       569
     percent from the 580 sanctioned
     posts of Assistant Prosecution
     Officer, as per Government Order
     No. 15/20/95-Ka-4-2002 dated
     05.03.2002 and Government
     Letter No. 2938/ Chha-Pu-9-06-
     31(28)/91 dated 25.01.2007

     (580x2% = 580-11-569).

4.   Expected category-wise details            237       93     53    2         2    387
     on inclusion of remaining
     candidates who are working,
     under process of appointment and
     have taken charge, as on
     01.01.2025.

     Status after difference (Column           +9        61     67    9     -54      182
     2-3), as on 01.01.2025 against the
     direct recruitment of the Assistant
     Prosecution Officer.

5.   Available vacancy                         00        61     67    9     45       182

6.   Requisitioned Posts                       27        61     67    9     18       182
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8. As per the counter affidavit filed by the State respondents, now the
total sanctioned posts of Assistant Prosecution Officer is 569, 50%
whereof would fall under the Unreserved category and 50% under
Reserved category. It has been demonstrated that 50% of 569 sanctioned
posts of Assistant Prosecution Officer would be 284.5, and as per the
chart, 237 Assistant Prosecution Officers under Unreserved category and
2 under EWS category, totaling to 239 are working. Deducting the said
239 posts, which are filled up by Assistant Prosecution Officers, the
remaining posts which would come would be 45.5, which would be
rounded off to 45. As per the chart, there are 9 Assistant Prosecution
Officers under Unreserved category in excess, who are working, and in so
far as the total number of posts so earmarked for EWS category, treating
it to be 569, only 2 Assistant Prosecution Officers under EWS category
are working, thus there is residue of 54. Since the total number of posts
which are already filled under unreserved OBC, SC, ST and EWS
(237+93+53+2+2 totaling to 387) are already filled up and deducting the
same from the sanctioned posts of APO being 569, 182 posts are liable to
be filled under different categories and thus now 182 posts are being
advertised by virtue of the advertisement dated 16.09.2025 showing break
whereof for unreserved, OBC, SC, ST and EWS (27+61+67+9+18
totaling to 182). As regards the issue as to what would be the criteria
adopted for determining the reservation, the same stands specified in the
statutory enactments which holds the field. Though U.P. Public Services
(Reservation for Schedule Castes, Schedule Tribes and Other Backward
Classes) Act, 1994 is concerned, the same deals with reservation for
schedule castes and schedule tribes and OBC under 21%, 2% and 27%
quota. The provision of carry forward itself finds place in Section 3 of the
Act itself which reads as under:
"(1) In public services and posts, there shall be reserved at the stage of direct
recruitment, the following percentage of vacancies to which recruitment's are to be
made in accordance with the roster referred to in sub-section (5) in favour of the
persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward
Classes of citizens, -
(a)
in the case of Scheduled Castes
Twenty-one per cent;
(b)
in the case of Scheduled Tribes
Two per cent;
(c)
in the case of Other Backward Classes of citizens
Twenty-seven per cent:
Provided that the reservation under clause (c) shall not apply to the category of Other
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                                         5

Backward Classes of citizens specified in Schedule II:
Provided further that reservation of vacancies for all categories of persons shall not
exceed in any year of recruitment fifty per cent of the total vacancies of that year as
also fifty per cent of the cadre strength of the service to which the recruitment is to be
made;
(2) If, in respect of any year of recruitment any vacancy reserved for any category of
persons under sub-section (1) remains unfilled, such vacancy shall be carried forward
and be filled through special recruitment in that very year or in succeeding year or
years of recruitment as a separate class of vacancy and such class of vacancy shall
not be considered together with the vacancies of the year of recruitment in which it is
filled and also for the purpose of determining the ceiling of fifty per cent reservation
of the total vacancies of that year notwithstanding anything to the contrary contained
in sub-section (1);
(3) Where a vacancy reserved for the Scheduled Tribes remains unfilled even after
three special recruitments made under sub-section (2), such vacancy may be filled
from amongst the persons belonging to the Scheduled Castes;
(b)(i) sub-section (3-A), (3-B) shall be omitted;
(ii) sub-section (4) shall be omitted;
(c) for sub-section (5), the following sub-section shall be substituted, namely :-
(5) The State Government shall for applying the reservation under subsection (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.
"

9. Furthermore with respect to Uttar Pradesh Public Services (Reservation
for Economically Weaker Sections Act, 2020 is concerned, Section 3
reads as under:

"3. Reservation in favour of Economically Weaker Section
(1) In public services and posts, at the stage of direct recruitment, ten percent of
vacancies to which recruitment are to be made, they shall be reserved in favour of the
persons belonging to Economically Weaker Sections of citizens:Provided that the
reservation shall not apply to the category of Economically Weaker Sections of
                                                                WRIA No. 17088 of 2025
                                    6

citizens specified in the Schedule to this Act:Provided further that the candidates from
out of the State of Uttar Pradesh shall not be eligible for benefits of reservation under
this Act.
(2) The reservation under this section shall be in addition to the reservation provided
under the Uttar Pradesh Public Services (Reservation for Schedule Castes, Scheduled
Tribes and Other Backward Classes) Act, 1994.
(3) The     office   memorandum         issued    by    Karmik      Anubhag-2       wide
no.1/2019/4/1/2002/ka-2/19T.C.II, dated 18.02.2019 shall be deemed to have been
issued under this section.
(4) For applying the reservation under sub-section (1), roaster has been issued by
notification O.M. No.5/2019/4/1/2002/ka-2/2019T.C.-I, dated 13th August, 2019 by
the State Government which shall be continuously applied till it is exhausted.
(5) If a person belonging to Economically Weaker Sections of citizens gets selected on
the basis of merit in an open competition with unreserved candidates, he shall not be
adjusted against the vacancies reserved for such category under sub-section (1).
(6) Where in any particular recruitment year any vacancy earmarked under sub-
section (1) for Economically Weaker Sections cannot be filled up due to non
availability of a suitable candidate belonging to Economically Weaker Sections such
vacancies shall not be carried forward to the next recruitment year as backlog and the
said vacancy shall be filled by the eligible candidates of unreserved category."

10. A bare look of the Section 3(1) of the 2020 Act would reveal that in
public services and the post at the stage of direct recruitment 10% of the
vacancy to which recruitment are to be made shall be reserved in favour
of the personnel belongings to economically weaker sections and Section
3(6) of the 2020 Act itself provides that bearing in mind in particular
recruitment year, any vacancy earmarked under sub-section (1) of the
economically weaker sections cannot be filled up due to non-availability
of suitable candidates belonging to economically weaker sections such
vacancy shall not be forwarded to next recruitment year as backlog and
the said vacancy shall be filled by eligible candidates of unreserved
category.

11. Pertinently, the constitutional framers were not oblivious of the
grounds realities and the practical difficulties which would arise in the
matter of implementation of the reservation policies and that is why two
separate enactments came to be introduced pertaining to the reservation
for different categories.

12. Further the observations made in the distinguished decision in Indira
Sawhney (supra) came to be followed and considered in R.K. Sabarwal
(supra) and following was observed:-
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                                     7


"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. 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 Indira Sawhney v. Union of India MANU/SC/0104/1993 :
AIR1993SC477, observed as under :-
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 OBC 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. It 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. 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's 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's case is not
the authority for the point that the roster survives after the cadre-strength is full and
                                                                 WRIA No. 17088 of 2025
                                     8


the percentage of reservation is achieved.
9. A Division Bench of the Allahabad High Court in J.C. Malik and Ors. v. Union of
India and Ors. (1978) 1 SLR 844 interpreted Railway Board's circular dated April 20,
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.

10. We may examine the likely result if the roster is permitted to operate in respect of
the vacancies arising after the total posts in a cadre are filled. In a 100 point roster,
14 posts at various roster-points are filled from amongst the Scheduled
Castes/Scheduled
Tribes candidates, 2 posts are filled from amongst the Backward Classes and the
remaining 84 posts are filled from amongst the general category. Suppose all the
posts in a cadre consisting of 100 posts are filled in accordance with the roster by
December 31,1994. Thereafter in the year 1995, 25 general category persons (out of
the 84) retire. Again in the year 1996, 25 more persons belonging to the general
category retire. The position which would emerge would be that the Scheduled Castes
and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies
are given to them then in the cadre of 100 posts the reserve Categories would be
holding 24 posts thereby increasing the reservation from 16% to 24%. On the
contrary if the roster is permitted to operate till the total posts in a cadre are filled
and thereafter the vacancies falling in the cadre are to be filled by the same category
of persons whose retirement etc. caused the vacancies then the balance between the
reserve category and the general category shall always be maintained. We make it
clear that in the even of non- availability of a reserve candidate at the roster-point it
would be open to the State Government to carry forward the point in a just and fair
manner.

11. We, therefore, find considerable force in the second point raised by the learned
Counsel for the petitioners. We, however, direct that the interpretation given by us to
the working of the roster and our findings on this point shall be operative
prospectively.

12. The writ petition is, therefore, disposed of in the above terms. No costs."

13. Notably, the concept, which stands applied for reservation under EWS
category cannot be injected while providing reservation under SC, ST and
OBC category, since the concept of vacancy nowhere finds place under
1994 Act. Moreover, the argument so raised by the learned counsel for the
writ petitioners that 10% reservation is to be applied upon the total cadre
strength of Assistant Prosecution Officer being 569 is concerned, the same is
also misplaced, particularly when Section 3(6) of the 2020 Act does not
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                                                                        9


                                    provide for vacancies to be carried forward. In any view of the matter, since
                                    182 posts were being advertised and after rounding up, only 18 posts are
                                    available under EWS category. In Vindheshwari Pandey (supra), a
                                    coordinate Bench of this Court was confronted with the challenge raised to
                                    the Advertisement published on 16.09.2025, which is also challenged in the
                                    present proceedings and in paragraphs-6 and 7, the following was observed:-

                                    "6. Upon consideration of submissions of learned counsel for parties and perusal of
                                    material on record, it is evident that advertisement has indicated number of vacancies
                                    under reservation as described here-in-above. The entire aspect has been adjudicated
                                    by Hon'ble Supreme Court in the case of R.K.Sabharwal and others (supra) in the
                                    following manner:-

                                    "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
                                    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. In view thereof, it is quite evident that reservation is required to be taken in the
                                    context of cadre-strength and the concept of vacancy has no relevance in operating
                                    percentage of reservation."

                                    14. No good ground has been made out for interference. Resultantly, the writ
                                    petitions are dismissed.
                                    February 23, 2026
                                    N.S.Rathour

                                                                                                   (Vikas Budhwar,J.)




Digitally signed by :-
NIPENDRA SINGH RATHOUR
High Court of Judicature at Allahabad