Supreme Court of India
STATE OF U.P. AND ORS.versusSANGAM NATH PANDEY AND ORS.
- Citation
- 2010 INSC 881
- Decided
- 15 December 2010
- Disposal
- Appeal(s) allowed
- Bench
- B SUDERSHAN REDDY
Holding
Only vacancies that were advertised and subjected to a complete selection process may be deemed backlog vacancies; the 367 posts, whose selection was incomplete, cannot be treated as backlog, making the State’s special recruitment valid.
Summary
The State of Uttar Pradesh sought to fill 367 reserved‑category vacancies through a special recruitment, treating them as backlog vacancies, while eight general‑category candidates challenged this exclusion as illegal. The High Court held the State’s action unjustified and ordered a fresh result as if the vacancies were not backlog. On appeal, the Supreme Court examined the provisions of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, particularly sections 2(d), 3(1), 3(2) and 3(5). It held that only vacancies that had been advertised and undergone a complete selection process could be classified as backlog vacancies; the 367 posts had not completed such a process and therefore could not be treated as backlog. Consequently, the State’s segregation of these posts for special recruitment was lawful and the High Court’s direction was set aside. The appeal was allowed and the Division Bench judgment was overturned.
Issues considered
- Whether the 367 vacancies can be classified as backlog vacancies under Section 3(2) of the Uttar Pradesh Reservation Act.
- Whether treating those vacancies as backlog and excluding them from general recruitment violates the 50% reservation ceiling.
- Whether the State’s special recruitment of the 367 posts is permissible under the Act.
- Whether the High Court’s order directing a fresh result as if the vacancies were not backlog is legally valid.
Legislation cited
- Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994s. 2(d), s. 3(1), s. 3(2), s. 3(5)
Subjects
ReservationBacklog vacanciesSpecial recruitmentUttar Pradesh Public Services Act50 percent ceilingRoster systemInterpretation of statutes
Judgment
[2010] 15 (ADDL.) S.C.R. 1194
A STATE OF U.P. AND ORS.
v.
SANGAM NATH PANDEY AND ORS.
(Civil Appeal No. 4360 of 2010)
DECEMBER 15, 2010
B
[B. SUDERSHAN REDDY AND SURINDER SINGH
NIJJAR, JJ.]
Recruitment - Special recruitment for reserved category
C - Uttar Pradesh Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and Other Backward Classes) Act,
1994 (as amended) - ss. 2(d), 3(2) and 3(5) - Uttar Pradesh
Public Services - Public Service Commission initiated
selection process - Exclusion of 367 vacancies from general
D recruitment - Challenge to - Writ Petition - High Court held
that the action of the State in treating 367 vacancies belonging
to reserved category as backlog vacancies was not justified
and further issued a direction to the State Government to
declare the result afresh in respect of these vacancies as if
E they are not backlog vacancies and that appointments may
be ottered in terms of the roster provided under s.3(5) - On
appeal, hf:Jld: A harmonious construction of ss.2(d), 3(2) and
3(5) would lead to the conclusion, that only those vacancies
can be declared backlog vacancies, within the reserved
F category, which were subject matter of advertisement but
remained unfilled because of non-availability of suitable
candidates, within the reserved category, after selection - Any
vacancy, not subjected to a complete process of selection,
even though vacant, cannot be treated as a backlog vacancy
G - On tacts, the selection process for the 367 posts in question
was not completed, therefore, the aforesaid vacancies could
not be termed as unfilled vacancies belonging to the reserved
categories - The authorities were rather casual in their
approach in implementing the reservation policy, in letter and
H 1194
\
STATE OF U.P. AND ORS. v. SANGAM NATH 1195
PANDEY AND ORS.
spirit - However, the 367 posts lying vacant for number of A
years are meant only for the reserved categories - In
segregation of the aforesaid posts, none of the unreserved
categories would be deprived of any posts which ought
legitimately to have fallen to their share - The interest of
justice, in the peculiar facts of this case, demands that the 8
course adopted by the State Government in segregating 367
posts f · special recruitment ought not to be disturbed -
Interpretation of Statutes - Harmonious construction.
There was reservation for different categories of
backward classes in the Uttar Pradesh Public Services. C
The State Government addressed letter to the Public
Service Commission with a request to initiate the process
of selection of vacant posts meant exclusively for the
reserved categories of Scheduled Castes, Scheduled
Tribes and Backward Classes. It was stated that there D
were a total number of 367 posts in the aforesaid
reserved categories for which, it was necessary to initiate
the process of selection as a special recruitment. The
Public Service Commission, thereafter, initiated the
selection process. Consequently, an option was given to E
the reserved category candidates as to their choice for
being considered against the 520 posts of general
recruitment or against 367 posts of special recruitment
meant exclusively for the reserved category. The reserved
category candidates apparently gave their option for the F
Special recruitment category of 367 posts. The interview
was held thereafter for 520 posts for general recruitment
and 367 posts for special recruitment. The final results
were declared.
Aggrieved by the exclusion of 367 posts for the G
special recruitment, eight unsuccessful candidates
belonging to the General category filed writ petitions in
the High Court. The grievance made by the writ
petitioners is the exclusion of 367 vacancies on the basis
H
1196 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A that they are backlog vacancies which have remained
unfilled and are to be filled up by way of a special
recruitment. According to them, by exclusion of 367
vacancies, the total vacancies for the general recruitment
was reduced to 520 which unnecessarily resulted in a
B reduction of the posts which could be filled by all the
categories in the general recruitment. The petitioners
claimed that the exclusion of 367 vacancies from the
general recruitment was without any legal sanction. It was·
the case of the petitioners that a vacancy can only be
c declared as a backlog vacancy provided there was a
complete selection procedure in any recruitment year and
the vacancy remained unfilled; that since there had been
no efforts earlier to fill in all the 367 posts and declared
as backlog, the exclusion of the same from the general
recruitment was illegal.
0
The High Court held that the action of the State of
Uttar Pradesh in treating 367 unfilled vacancies belonging
to the reserved category as backlog vacancies was
legally not justified and further issued a direction to the
E State Government to declare the result afresh in respect
of these vacancies as if they are not backlog vacancies
and that appointments may be offered in terms of the
roster provided under notification dated 25th May, 2002
issued in exercise of powers under Section 3(5) of the
F Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994.
The State contended that the implementation of the
G directions of the High Court would create legal as well as
administrative complication; that 367 posts which were
segregated for special recruitment did not, in any manner,
infringe the rights of the general category candidates;
that a conjoint reading of the second proviso to sub-
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1197
PANDEY AND ORS.
section (1) of Section .3 and sub-sections (2) and (5) of A
the said Section made it abundantly clear that so long as
the reservation did not exceed 50 per cent of the cadre
strength, the general category candidates could have no
objection in the special recruitment undertaken in order
to complete the 100 points roster; and that the High Court 8
misconstrued Section 3 in concluding that the action of
the State Government in treating 367 vacancies as
backlog was legally not justified. If was contended that
the State had endeavoured to achieve the object of the
reservation without prejudicing the claim of the general c
category candidates; that out of the total sanctioned
strength of the cadre of 4127 posts, 50 per cent for
general category would be 2066 posts and out of that
share, the general category already occupied 1808 posts
leaving a balance of 260 posts which were available to D
be filled up for general category; that the total number of
vacancies were 887 out of which 520 earmarked for
general recruitment to ensure that the general category
gets 260 vacancies i.e. 50 per cent of the total available
vacancies in the cadre and that remaining 367 vacancies
were treated as backlog vacancies for the reserved E
categories. It was contended that merely because the
vacancies were not advertised would not render the
action of the State Government illegal.
On the other hand, the respondents contended that F
by excluding 367 vacancies and earmarking the same for
special recruitment, the State of U.P. infringed the 50 per
cent rule in the year of recruitment as well as in the
cadre; and that by excluding 367 posts as backlog, the
State reduced the strength of the percentage meant for G
the general recruitment category and recruitment of the
reserved category went up to 71 per cent as against 50
per cent. ·
Allowing the appeals, the Court
H"
1198 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A HELD:1.1. A bare perusal of the relevant provisions
of the Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act 1994 as amended by the Uttar
Pradesh Public Services (Reservation for Scheduled
B Castes, Scheduled Tribes and Other Backward Classes)
(Amendment) Act, 2001would show that the Act regulates
the extent of reservation in Public Services and Posts in
favour of the persons belonging· to Scheduled Castes,
Scheduled Tribes and Other Backward Classes of
c citizens and for matters connected therewith or incidental
thereto. It also provides for a self-contained mechanism
as to how the posts shall be distributed among the
different categories according to 100 point roster. The
second proviso to Section 3 of the Act, which is relevant
to matter in issue herein, stipulates that reservation of
0
vacancies for all categories of persons shall not exceed
in any year of recruitment, 50 per cent of the total
vacancies of that year as also 50 per cent of the cadres
strength of the service to which the recruitment is to be
made. The proviso clearly postulates a two-fold.
E restriction on the extent to which vacancies can be ·
reserved in a year of recruitment as also the cadre ;
strength of the service. It is clearly provided that in any
year of recruitment reservations of vacancies for all
categories of persons shall not exceed 50 per cent of the
F total vacancies of the year of recruitment in which such
recruitment takes place. Under the second part of the
proviso, reservation can also not exceed 50 per cent of
the cadre strength of the service to which recruitment is
to be made. [Para 15] [1216-F-H; 1217-A-C]
G
1.2. In any recruitment year, it may happen that the
candidates belonging to the reserved category may not
be available to fill the vacancies falling to the share of the
particular reserved category. In such circumstances,
H sub-section (2) of Section 3 enables the State to carry
STATE OF U.P. AND ORS. v. SANGAM NATH 1199
PANDEY AND ORS.
forward the unfilled vacancy/vacancies to be filled A
through special recruitment as a separate class of
vacancy. Such class of vacancy can not be intermingled
with the vacancies of the year of recruitment in which it
is filled. It also can not be counted for the purpose of
determining of ceiling of 50 per cent reservation of the B
total vacancies of that year. The provision contained in
sub-section 2 is, notwithstanding anything to the contrary
contained in sub-section 1, which provide for a total 50
per ~ent reservation for the categories of Scheduled
Castes, Scheduled Tribes and Other Backward Classes, c
i.e., 21 per cent, 2 per cent and 27 per cent respectively.
The terminology of the aforesaid section is clear and
unambiguous. Therefore, construed in its ordinary, literal
sense, the sub section provides that the carried forward
vacancies are not to be included in calculating the 50 per D
cent cap as contained in Proviso 2 to Section 3 (1 ). The
special recruitment may be held in that very year or in the
succeeding year or years of recruitment as a separate
class of vacancy. Sub-section 3 further providesthat if
vacancy/vacancies reserved for Scheduled Tribes
remained unfilled even after three special recruitment E
made under sub-section 2, such vacancies are to be filled
up from amongst persons belonging to the Scheduled
Castes. In other words, unfilled vacancies falling to the
share of Backward Classes and Scheduled Castes and
Scheduled Tribes, can be offered to the Scheduled F
Castes category. These provisions clearly indicate that
the posts which are meant for the reserved categories
would be offered only to the reserved categories so long
as the reserved roster points are not occupied by the
reserved categories. [Para 16] [1217-C-H; 1218-A-B] G
1.3. The aforesaid conclusion also flows naturally
from sub-section 5 of Section 3. The plain language of
aforesaid sub-section clearly shows that reservation
under sub-section 1 of Section 3 shall be achieved by H
1200 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A application of a roster indicating therein; the total cadre
strength of the Public Service or Posts and the reserved
points in the roster. The roster so issued is required to
be implemented in the form of a running account from
year to year until the reservation for various categories
B of persons mentioned in sub-section 1 is achieved. The
vacancies arising thereafter in the Public Service or Posts
is to be filled from among the persons belonging to the
category to which the posts belong in the roster. [Para
17] [1218-C-D]
c 1.4. A harmonious construction of sections 2(d), 3(2)
and 3(5) of the Act would lead to the conclusion, as stated
by the High Court, that only those vacancies can be
declared backlog vacancies, within the reserved
category, which were subject matter of advertisement but
D remained unfilled because of non-availability of suitable
candidates, within the reserved category, after selection.
It is only in respect of such vacancy that the procedure
qua backlog vacancy can be adopted. Any vacancy,
which has not been subjected to a complete process of
E selection, even though vacant, cannot be treated as a
backlog vacancy. [Para 19] [1220-G-H; 1221-A-B]
1.5. Section 2(d) defines a period of 12 months
commencing on 1st of July of a year as a year of
F recruitment for calculation of the number of vacancies.
Section 3(1) gives the different percentages of vacancies,
which are reserved for different categories of backward
class candidates. The percentage of vacancies reserved
under Section 3(1) had to be filled according to the roster
G mechanism provided under sub-section 5 of Section 3.
Section 2(d) would tend to indicate that the State was
required to determine the number of available vacancies
in every year of recruitment. Once the vacancies are
determined, necessary requisition would have to be sent
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1201
PANDEY AND ORS.
to the Public Service Commission for initiating the A
process of selection. (Para 20] (1221-C-E]
1.6. In the instant case, it is seen that inspite of the
correspondence _of the Government with the Public
Service Commission intimating the number of posts to be 8
filled at various stages, the posts meant for the reserved
categories could not be filled. The State Government had
only partly performed its duties by sending the necessary
requisitions to the Public Service Commission for
initiating the selection process. Thereafter, the selection C
process ought to have been completed as provided
under the Statutory Rules. It appears that the selection
process for the 367 posts was not completed. Therefore,
the aforesaid vacancies could not be termed as unfilled
vacancies belonging to the reserved categories. But, at
the same time, it also can not be disputed by anybody D
that the 367 posts, which are sought to be filled by
special recruitment ,are posts, which are meant for the
reserved categoriesand have remained unfilled. This is
evident from the letter dated 25th October, 2005 pointing
out that out of the 887 posts mentioned in the letter dated E
13th October, 2005, 367 posts were intact reserved
category posts, which had been lying vacant and had
been wrongly included in the general recruitment. Hence,
a request was made to exclude the aforesaid posts from
the general selection and be filled by holding a special F
recruitment for the reserved category candidates. (Paras
20, 21] (1221-D-H; 1222-A-B]
1.7. The exercise of identifying the year-wise and
cadre-wise vacancies ought to have been conducted by G
the State prior to the issuance of the advertisement. The
purpose of introducing a roster system was to ensure
that the percentages of reservation provided for various
categories of persons is effectively and speedily
H1
1202 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A achieved. This can only be done if the department
concerned identifies the year-wise vacancies in the
cadre. Once the vacancies are identified, it is enjoined
upon the authorities to ensure that the selection
procedure is completed speedily. This is necessary to
B avoid uncertainty to all categories of candidates. General
category, as well as, the reserved category candidates
are likely to be adversely affected in case the vacancies
are not filled within a reasonable period of time. As a
result r<i u• Jue delay, certain candidates will always be
c in the danger of becoming overage to apply for some
particular posts falling in a particular year of recruitment.
Unnecessary lethargy in filling up the posts would also
lead to further uncertainty and chaos among the recruits
with regard to their seniority, confirmation and
promotions. Such a situation only gives rise to
0
unavoidable litigation, lasting for many long years. This
case epitomizes such malaise. [Para 22] [1222-C-F]
1.8. The State Government, in the present case, ought
to have initiated the necessary selection procedure upon
E due verification of the posts available for the reserved
categories. It was not sufficient to merely send the
requisition to the Public Service Commission. It was
necessary for the State to pursue the matter with the
Public Service Commission for completion of the
F selection process. Otherwise, the very purpose of
introducing the roster system and a running account
would be totally defeated. It is necessary for the
department to identify year-wise vacancies for the cadre.
It is also necessary to fill up the posts speedily in order
G to avoid certain candidates being rendered ineligible as
they may have become overage. It is for this reason that
Section 3 has placed importance on the year of
recruitment as also on the process of selection. In the
instant case, the authorities have been rather casual in
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1203
PANDEY AND ORS.
their approach in implementing the reservation policy, in A
letter and spirit. However, the 367 posts lying vacant for
a number of years are meant only for the reserved
categories. They have been calculated on the basis of the
percentages reserved for various categories. In
segregation of the aforesaid posts, none of the s 1
unreserved categories would be deprived of any posts
which ought legitimately to have fallen to their share.
[Para 23) (1222-G-H; 1223-A-B; 1226-E-H] .
1.10. The interest of justice, in the peculiar facts of q
this case, demands that the course adopted by the State
Government in segregating 367 posts for special
recruitment ought not to be disturbed. Also, all the writ
petitioners participated in the selection process and
remained unsuccessful. Therefore, none of their legal
rights has been infringed. (Paras 24, 25) (1227-A-C] D1
Indra Sawhney v. Union of India (1992) Supp 3 SCC
217; R.K. Sabharwal & Ors v. State of Punjab & Ors.(1995) 2
sec 745 - relied on.
M. Nagaraja v. Union of India (2006) 8 SCC 212; Ei
Ramesh Kumar v. High Court of Delhi (2010) 3 SCC 104 -
referred to.
Case Law Reference:
F
(1992) Supp 3 sec 211 relied on Para 2, 7, 12,
23
(1995) 2 sec 145 relied on Paras 12, 13,
23
G
(2006) s sec 212 referred to Para 13
(2010) 3 sec 104 referred to Para 13
CIVIL APPELLATE JURISE>ICTION : Civil Appeal No.
4360 of 2010. H
1204 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A From the Judgment & Order dated 04.10.2007 of the High
Court of Judicature at Allahabad in Special Appeal No. 1202
of 2006.
Shail Kr. Dwivedi, AAG Pradeep Misra, Ardendumouli
Prasad, Vandana Mishra, Shekhar Raj Sharma, Ashutosh Kr.
8
Sharma, Suraj Singh, Aviral Shukla, Manoj Kr. Dwivedi for the
Appellants.
V.J. Francis, Anupam Mishra, Vivek Kandari, Jagjit Singh
Chhabra, Abhik Kumar, Mohd. Mustafa, Sidhartha Shankar
C Ray, Rajesh Kumar Naidu, Tripurari Ray, Medhavi Kumar,
Vishnu Sharma, Chandra Prakash Pandey for the
Respondents.
The Judgment of the Court was delivered by
D
SURINDER SINGH NIJJAR, J. 1. This appeal has been
filed by the State of Uttar Pradesh challenging the order passed
by the High Court of Judicature at Allahabad, in Special Appeal
No.1202 of 2006 whereby the Division Bench of the High Court
observed that the action of the State in treating 367 vacancies
E belonging to the reserved category as backlog vacancies was
legally not justified and further issued a direction to the State
Government to declare the result afresh in respect of these
vacancies as if they are not backlog vacancies and that
appointments may be offered in terms of the roster provided
F under notification dated 25th May, 2002 issued in exercise of
powers under Section 3 (5) of the U.P Act No. 4 of 1994.
2. In order to appreciate the factual and legal controversies
raised in this matter, it would be necessary to notice the various
G legislative provisions which govern the field of reservation in
Public Services, in the State of Uttar Pradesh. Initially, the
reservation in pub!ic services in the State of Uttar Pradesh was
regulated through various Government orders, issued from time
to time. The Uttar Pradesh Public Services (Reservation for
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1205
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
Scheduled Castes, Scheduled Tribes and Other Backward A
Classes) Act, 1994 (U.P. Act No. 4 of 1994) (hereinafter
referred to as "1994 Act") was enacted by the State of Uttar
Pradesh following the judgment of this Court in Indra Sawhney
Vs. Union of lndia 1• The aforesaid act repealed the Uttar
Pradesh Public Services (Regulation for Backward Classes) Bi
Act, 1989 and the Uttar Pradesh Public Services (Reservation
for Scheduled Castes and Scheduled Tribes) Act, 1993 and
the Uttar Pradesh Public Services (Reservation for Scheduled
Castes, Scheduled Tribes and the other Backward Classes)
Ordinance, 1994. c
3. The 1994 Act itself was amended by the Uttar Pradesh
Public S.ervice (Reservation for Scheduled Castes, SCheduled
Tribes and Other Backwards Classes) (Amendment) Act,
2001(U.P. Act No. 21 of 2001). Some provisions of this Act
were challenged in this Court in a writ petition. This Court; by D
Interim Order dated 21st January, 2002 directed that no
executive order, in pursuance of the aforesaid Act of 2001, shall
be passed during the pe11dency of the writ petition. Since a
large number of vacancies in public service is lying vacant, the
State of Uttar Pradesh decided to restore the original position E
as obtained under the 1994 Act, i.e. before the amendment by
the U.P. Act No. 21 of 2001. Thereafter, the Governor of Uttar
Pradesh on 6th June, 2002 promulgated the Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled
Tribes and Other Backwards Classes) (Amendment) Ordinance F
2002. This was subsequently replaced by the Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled
Tribes and Other Backwards Classes) (Amendment) Act, 2002
(U.P. Act No. 1 of 2002).
G
4. Under the 1994 Act, very comprehensive provisions
have been made to provide for reservation in Public Services
and Posts in favour of the person belonging to Scheduled
Castes, Scheduled Tribes and Other Backward Classes of
1. (1992) supp 3 sec 211.
1206 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A citizens and for matters connected therewith or incidental
thereto. Section 3 of the aforesaid Act provides certain
percentages of vacancies reserved for different categories of
backward classes of citizens. The following percentages were
prescribed:-
B
Scheduled Castes 21%
Scheduled Tribes 2%
Other Backward Classes 27%
c These vacancies were to be filled in accordance with the roster
provided under sub-section 5 of Section 3. The aforesaid
percentages remained the same even under the amended
Section 3 as contained in the Amendment Act, 2002. In
accordance with the aforesaid formula, a requisition was made
0
by the Irrigation Department Government of Uttar Pradesh on
20th October, 1999 to the Uttar Pradesh Public Service
Commission, for initiating the process of selection of
candidates for the posts of Junior Engineer (Civil). Pursuant to
this request, an advertisement was issued on 22nd December,
E 2000 for filling up 945 such posts. The last date for making the
applications was 27th January, 2001. The break up of the said
posts sought to be filled up was as follows:
477 general category
F
257 backward classes
200 Schedule Caste category
The written examinations were conducted on 22nd/23rd
G December, 2001. The aforesaid examination was conducted
without taking into consideration the reorganization of the State
of Uttar Pradesh and the creation of the State of Uttaranchal
on 9th November, 2000. There was a 2 per cent reduction in
vacancies upon creation of the aforesaid new State. There was
H also an increase in the number of available vacancies by
STATE OF U.P. AND ORS. v. SANGAM NATH 1207
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
inclusion of the recruitment year 2003-2004. Thus, the total A
number of posts against which the selection was to be
conducted was reduced from 954 to 887. The break up was
as follows:-
General Category 260
B
Backward Classes 391
Scheduled Castes 223
Scheduled Tribes . 13
c
Consequently, by letter dated 6th November, 2003, the State
Government informed the Public Service Commission to take
further action for selection of 887 posts for the year 2003-2004
as opposed to the earlier requisition for 954 posts. Acting upon
the aforesaid requisition, the result of the written examination D•
was declared on 6th October, 2005.
Thereafter by a letter dated 13th October, 2005, the
Government informed the Public Services Commission that at
the time of sending of the original requisition, the posts of E
reserved category have been ihcorrectly got included in the
general selection process. Therefore, the requisition be
amended. in this requisition, the following description of the
general selection posts was given and a request was made to
initiate the process of selection:-
F
General Category 260
Scheduled Castes 109
Scheduled Tribes 10
G
Backward Classes 141
Thereafter, the Government addressed another letter dated
25th October, 2005 to the Public Service Commission with a
request to initiate the process of selection of the vacant posts H
1208 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A meant exclusively for the reserved categories of Scheduled
Castes, Scheduled Tribes and Backward Classes. It was
stated that there are a total number of 367 posts in the
aforesaid reserved categories for which, it was necessary to
initiate the process of selection as a special recruitment. The
B break up of the posts category wise was:-
Scheduled Castes 114
Scheduled Tribes 3
c Backward Classes 250
5 . The Public Service Commission, thereafter, initiated the
selection process by incorporating the various changes noticed
above. Consequently, an option was given to thE reserved
category candidates as to their choice for being considered
0
against the 520 posts of general recruitment or against 367
posts of special recruitment meant exclusively for the reserved
category. The reserved category candidates appear to have,
given their option for the Special recruitment category of 367'
posts. The interview was held thereafter between 21st
E November. 2005 to 12th January, 2006 for 520 posts for
general recruitment and 367 posts for special recruitment. The
final i'esults were declared on 12th March, 2006. It is not
disputed that respondent No. 1 to 3 and 5 had qualified in the
written examination and had appeared in the interview. It is also
F not disputed that all these respondents remained unsuccessful
in the final selection.
6. Aggrieved by the exclusion of 367 posts for the special
recruitment, eight unsuccessful candidates belonging to the
G General category filed four writ petitions in the High Court of
Judicature at Allahabad. It was the claim of the writ petitioners
that the advertisement dated 20th/22nd December, 2000 was
to fill the 954 posts, which was subsequently modified to 887.
50 per cent of the posts were reserved for different categories
H of Scheduled Castes, Scheduled Tribes and Other Backward
STATE OF U.P. AND ORS. v. SANGAM NATH 1209
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
Classes. The petitioners had no grievance about the reduction A
of vacancies as indicated above. They also do not have any
grievance about the 50 per cent of the posts reserved for the
different categories. The only grievance made by the writ
petitioners is the exclusion of 367 vacancies on the basis that
they are backlog vacancies which have remained unfilled and s
are to be filled up by way of a special recruitment. According
to them, by exclusion of 367 vacancies, the total vacancies for
the general recruitment have been reduced to 520. This has
unnecessarily resulted in a reduction of the posts which could
be filled by all the categories in the general recruitment. The c
petitioners claimed that the exclusion of 367 vacancies from
the general recruitment was without any legal sanction. It was
the case of the petitioners that a vacancy can only be declared
as a backlog vacancy provided there was a complete selection
procedure in any recruitment year and the vacancy remained
0
unfilled. Since there had been no efforts earlier to fill in all the
367 posts and declared as backlog, the exclusion of the same
from the general recruitment was illegal.
7. The learned single Judge upon consideration of the
. various facts concluded that the general strength of the cadre E
being 4217 posts, 50 per cent of the general category would
be 2066 posts. Out of these 2066 posts, 1808 posts were
already occupied and only 260 posts were available for the non-
reserved category. The learned single Judge further observed
that in view of the number of posts occupied by the general F
category, it cannot be said that there has been any choking of
the general category as indicated in the case of Indra Sawhney
(supra). By reducing the number of posts for the general
category, the objective of reservation policy is being achieved.
The learned single Judge relied on the letter dated 4th July, G
2006 to conclude that the State had endeavored to achieve the
object of reservation without prejudicing the claim of the general
category candidates. The learned single Judge also observed
that
H
1210 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A "a perusal of section 3 of the act indicates that it is not
necessary for any vacancy having been advertised on an
earlier occasion in order to carry out the special
recruitment. The special recruitment has to be made with
the sole objective of achieving the target of unfilled
B vacancies of the reserve category after applying the roster.
The State Government, in the opinion of the Court, has
segregated the 367 posts as posts for special recruitment
in view of the fact that these posts exclusively belong to
the reserved category remains undisputed. The petitioner,
c who belongs to the general category, therefore, cannot
have any right or claim against the said posts, even if, they
have been advertised by the State Government. The posts,
which are meant to be filled up by the reserved category,
cannot be offered to the general category candidates. In
this view of the matter, the State Government, has to apply
D
the roster in order to achieve the target. The questions as
to whether they are backlog vacancies or not need not to
be probed any further in view of the fact that the
applicability of the roster against the said posts has to be
determined. The aforesaid discussions, therefore, leave to
E only one conclusion that the State Government has not over
stepped the 50 per cent reservation quota but the
selections have to be finalized after applying the roster."
8. The learned single Judge concluded that the 50 per cent
F limit as provided in the second proviso has not been
transgressed by the State in offering the 367 vacancies for
special recruitment as backlog vacancies. It is, however,
observed that the State Government ought to undertake the
exercise of carrying out the calculation of the exact number of
G vacancies on the basis of the roster provided under Section 3,
sub-section 5 of the 1994 Act. The writ petitions were disposed
of with the aforesaid observations.
9. Aggrieved against the aforesaid, the writ petitioners
preferred Special Appeal No. 1202 of 2006 before the Division
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1211
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
Bench. The Division Bench recorded the following conclusions:- A
"In view of the aforesaid we clarify that the backlog
vacancies with reference to Clause 2 of Section 3 of U.P.
Act No. 4 of 1994 as amended by U.P. Act No. 1 of 2002
necessarily mean those vacancies within the reserved B
. category which were subject matter of an earlier
advertisement but remained unfilled because of non
availability of suitable candidates within the reserved
category after selection. It is only in respect of such
vacancies that the procedure qua backlog vacancies can C
be adopted. We may further clarify that any vacancy in the
reserved category (however old it may be), if it had not
been advertised earlier and was not a part of an earlier
process of selection which was completed, the same
cannot be termed to be a backlog vacancy.
D
In the facts and circumstances of the present case it is not
in dispute that the total number of vacancies which were
advertised earlier i.e. 954 but subsequently reduced to 887
were not covered by any earlier advertisement nor were
part of any process of selection and, therefore, none of the E
vacancies which were subject matter of the advertisement
in question (belonging to the reserved category) can be
termed to be backlog vacancy. Therefore, the action of the
·' State respondents treating 367 vacancies belonging to the
reserved category as backlog vacancies is legally not F
justified. Respondents are directed to declare the result
afresh in respect of these vacancies as if they are not
backlog vacancies and appointments may bl offered in
terms of the roster provided for under notification dated
25th May, 2002 issued in exercise of powers under Section G
3(1) read with Section 3(5) of the U.P. Act No. 4 of 1994.
The aforesaid exercise may be completed by the State
respondents within two months from the date a certified
copy of this order is filed before the authority concerned."
10. We have heard the counsel for the parties. H
1212 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 11. Mr. Dwivedi appearing for the State of U.P. submits
that the directions issued by the Division Bench would only
unsettle the settled position. He submits that 703 posts have
been filled up against 887 posts that were advertised. Further
183 posts would be filled in compliance with the interim order
B of the Division Bench. All the selected candidates have joined
and have completed almost three years of service. The
implementation of the directions of the High Court would create
legal as well as administrative complication. He further submits
that 367 posts which were segregated for special recruitment
c do not, in any manner, infringe the rights of the general category
candidates. According to him, a conjoint reading of the second
proviso to sub-section (1) of Section 3 and sub-sections (2) and
(5) of the said Section makes it abundantly clear that so long
as the reservation does not exceed 50 per cent of the cadre
D strength, the general category candidates can have no objection
in the special recruitment undertaken in order to complete the
100 points roster. According to the learned counsel, the Division
Bench has misconstrued Section 3 in concluding that the action
of the State Government in treating 367 vacancies as backlog
was legally not justified.
E
12. Making a reference to the letter dated 4th July, 2006,
it was submitted by Mr. Dwivedi that the State has endeavoured
to achieve the object of the reservation without prejudicing the
claim of the general category candidates. He pointed out that
F out of the total sanctioned strength of the cadre of 4127 posts,
50 per cent for general category would be 2066 posts. Out of
that share, the general category already occupied 1808 posts
leaving a balance of 260 posts which were available to be filled
up for general category. Under the earlier advertisement dated
G 22nd of December, 2000, the break up of the vacancies was
as under:
(i) No. of vacancies 954
(ii) Posts for Scheduled Castes 200
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1213
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
(iii) Posts for Scheduled Tribes 20 A
(iv) Posts for 0.8.C. 257
(v) General Category 477
This would have been in excess of 50 per cent which is B
impermissible under the law settled by this Court in the case
of Indra Sawhney (supra), and R.K. Sabharwal & Ors Vs. State
of Punjab & Ors. 2. According to him, it would also be contrary
to the provisions contained under Section 3 of the Uttar
Pradesh Public Services (Reservation for Scheduled Castes, c
Scheduled Tribes and Other Backward Classes) Act 1994 as
amended by Act No. 1 of 2002. The total number of vacancies
were reduced to 887 out of which 520 earmarked for general
recruitment to ensure that the general category gets 260
vacancies i.e. 50 per cent of the total available vacancies in D
the cadre. Remaining 367 vacancies were treate1d as backlog
vacancies for the reserved categories. Merely because the
vacancies were not advertised would not render the action of
the State Government illegal. Mr. Dwivedi also submits that all
the appellants having participated in the selection process E
cannot be permitted to challenge the same merely because
they have remained unsuccessful. This apart, no relief could
have been given to the appellants as the selected candidates
have not been made parties.
13. On the other hand, Mr. Francis appearing for the F
respondents submits that by excluding 367 vacancies and
earmarking the same for special recruitment, the State of U.P.
has infringed the 50 per cent rule in the year of recruitment as
well as in the cadre. Laying considerable stress on the second
proviso to Section 3 of the Amendment Act, 2002, he has G
submitted that the total reservation for all categories of persons
cannot exceed in any year of recruitment 50 per cent of the tqtal
vacancies of that year as also 50 per cent of the cadre strength
of the service to which the recruitment is to be made. On the
2. (1995) 2 sec 745. H
1214 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A basis of the calculation made by the State and by excluding 367
posts as backlog, the State has reduced the strength of the
percentage meant for the general recruitll'lent category. The
recruitment of the reserved category has gone up to 71 per cent
as against 50 per cent. According to the learned counsel, the
B interpretation placed on the statutory provisions by the Division
Bench is in accordance with the law declared by this Court in
Indra Sawhney and R.K. Sabharwal's case (supra). It is also
in accordance with the law settled by this Court in the case of
M. Nagaraja Vs. Union of lndia 3 and Ramesh Kumar Vs. High
C Court of De/hi4 . According to the learned counsel, the Division
Bench merely directed the State Government to follow the
mandate of the statue as well as the law declared by this Court
by directing the State to declare the result afresh in respect of
367 vacancies by not treating them as backlog vacancies and
thereafter to offer appointments in terms of the roster provided
D under notification dated 25th May, 2002.
14. We have considered the submissions made by the
learned counsel for the parties. The entire controversy in this
case centres around the decision of the State Government to
E treat the unfilled vacancies undoubtedly falling to the share of
the reserved categories as backlog vacancies. In order to
determine as to what would be the backlog vacancies, it is
necessary to have a look at the relevant provisions of the Uttar
Pradesh Public Services (Reservation for Scheduled Castes,
F Scheduled Tribes and Other Backward Classes) Act 1994 as
amended by the Act No. 1 of 2002.
"2 (d) "year of recruitment" in relation to a vacancy means
a period of twelve months commencing on the first of July
of a year within which thEl process of direct recruitment
G against which such vacancy is initiated.
Amendment of Section 3 - In Section 3 of the Principal
Act,-·
3. (2006) a sec 212.
H 4. (2010) 3 sec 104.
STATE OF U.P. AND ORS. v. SANGAM NATH 1215
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
(a) for sub-sections (,1 ), (2) and (3) the following sub- A
section shall be substituted, namely :-
(1) In public services and posts, there shall be reserved
at the stage of direct recruitment, the following percentage
of vacancies to which recruitments are to be made in B
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 percent C
(b) in the case of Scheduled Tribes Two percent
(c) in the case of Other Backward Twenty seven percent
Classes of citizens D
Provided that the reservation under clause © shall not
apply to the category of Other Backward Classes of
citizens specified in Schedule II :
Provided further that reservation of vacancies for all E
categories of persons shall not exceed in any year of
recruitment fifty percent of the total vacancies of that year
as also fifty percent of the cadre strength of the services
to which the recruitment is to be made.
F
(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 recruitments in that very year
or in succeeding year or years of recruitment as a separate G
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 percent reservation of the
total vacancies of that year notwithstanding anything to the H
1216 SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.
A 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
B from amongst the persons belonging to the Scheduled
Castes."
(b) (i) Sub-sections .(3-A),(3-B) shall be omitted; (ii)
Sub-section (4) shall be omitted;
c (c) for sub-section (5), the following sub-section shall
be substituted, namely:-
"(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
D
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
E 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."
F 15. A bare perusal of the above would show that the Act
regulates the extent of reservation in Public Services and Posts
in favour of the persons belonging to Scheduled Castes,
Scheduled Tribes and Other Backward Classes of citizens and
for matters connected therewith or incidental thereto. It also
G provides for a self-contained mechanism as to how the posts
shall be distributed among the different categories according
to 100 point roster. The second proviso to Section 3, which is
relevant to matter in issue herein, stipulates that reservation of
vacancies for all categories of persons shall not exceed in any
H year of recruitment, 50 per cent of the total vacancies of that
STATE OF U.P. AND ORS. v. SANGAM NATH 1217
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
year as also 50 per cent of the cadres strength of the service A
to which the recruitment is to be made. The proviso clearly
postulates a· two-fold restriction on the extent to which
vacancies can be reserved in a year of recruitment as also the
cadre strength of the service. It is clearly provided that in any
year of recruitment reservations of vacancies for all categories B
of persons shall not exceed 50 per cent of the total vacancies
of the year of recruitment in which such recruitment takes place.
Under the second part of the proviso, reservatio·n can also not
exceed 50 per cent of the cadre strength of the service to which
recruitment is to be made. c
16. In any recruitment year, it may happen that the
candidates belonging to the reserved category may not be
available to fill the vacancies falling to the share of the particular
reserved category. In such circumstances, sub-section (2) of
Section 3 enables the State to carry forward the unfilled D
vacancy/vacancies to be filled through special recruitment as
a separate class of vacancy. Such class of vacancy can not be
intermingled with the vacancies of the year of recruitment in
which it is filled. It also can not be counted for the purpose of
determining of ceiling of 50 per cent reservation of the total E
vacancies of that year. The provision contained in sub-section
2 is, notwithstanding anything to the contrary contained in sub-
section 1, which provide for a total 50 per cent reservation for
the categories of Scheduled Castes, Scheduled Tribes and
Other Backward Classes, i.e., 21 per cent, 2 per cent and 27 F
per cent respectively. The terminology of the aforesaid section
is clear and unambiguous. Therefore, construed in its ordinary,
literal sense, the sub section provides that the carried forward
vacancies are not to be included in calculating the 50 per cent
cap as contained in Proviso 2 to Section 3 (1). The special G
recruitment may be held in that very year or in the succeeding
year or years of recruitment as a separate class of vacancy.
Sub-section 3 further provides that if vacancy/vacancies
reserved for Scheduled Tribes remained unfilled even after
three special recruitment made under sub-section 2, such H
1218 SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.
A vacancies are to be filled up from amongst persons belonging
to the Scheduled Castes. In other words, unfilled vacancies
falling to the share of Backward Classes and Scheduled
Castes and Scheduled Tribes, can be offered to the Scheduled
Castes category. These provisions clearly indicate that the
B · posts which are meant for the reserved categories would be
offered only to the reserved categories so long as the reserved
roster points are not occupied by the reserved categories.
17. The aforesaid conclusion also flows naturally from sub-
section 5 of Section 3. The plain language of aforesaid sub-
C section clearly shows that reservation under sub-section 1 of
Section 3 shall be achieved by application of a roster indicating
therein; the total cadre strength of the Public Service or Posts
and the reserved points in the roster. The roster so issued is
required to be implemented in the form of a running account
D from year to year until the reservation for various categories of
persons mentioned in sub-section 1 is achieved. The
vacancies arising thereafter in the Public Service or Posts to
be filled from among the persons belonging to the category to
which the posts belong in the roster.
E
18. Keeping in view the aforesaid legal position, the
issuance of the letter dated 4th July, 2006 would be wholly
justified. A perusal of the same would clearly demonstrate the
anxiety of the Government, though belated, to ensure that the
F action is taken in accordance with the reservation policy and
the roster which is to be maintained in terms of sub-section 5
of Section 3. The aforesaid letter reads as follows:-
"No.G-223-E-2-Kal/Court Case
G
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1219
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
From: A
Engineer-in-Chief,
Establishment - 2 Ka- Section,
Irrigation Department, U.P.
Lucknow.
To: B
Chief Standing Counsel,
High Court, Allahabad.
Dated Lucknow : July 4, 20:.J6.
Subject: Regarding Civil Misc. Writ Petition No.16005/
c
2006 titled Sangam Nath Pandey and others
vs. State of Uttar Pradesh and others.
Sir,
D
Kindly have a look into the letter No.Memo/P.S./2006
dated 3.7.2006, vide which you have sought information
regarding the status ofthe total cadre (group) of Civil Junior
Engineers and regarding their reservation on the above
subject. E
2. On this subject, I have to say that in the Irrigation
Department there are total 4217 posts of Junior Engineers
(Civil) for direct recruitment and at the time when the
amendment was made to Adhiyachan of 887 posts, at that
time the position of the quota of reserved category was F
as under:
Quota Quota Quota Quota
General S.C. S.T 0.8.C.
G
Total sanctioned
Posts 4218
Working after 2066 868 83 1116
H
1220 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R
A Deduction of 2%
From sanctioned
Posts.
Working 2672 1808 200 1 663
B
Group-wise
Shortage 1461 258 668 82 453
Posts to fall 2 2
Vacant (r; year
c 2003-2004
Requisitions
forwarded 1463 260 668 82 453
Thereafter, for completing the reserved quota of the
reserved category the following requisitions have been sent.
D
Selection in dispute 887
Special Selection 352 SC/ST)
(292 SC + 60 ST)
Special Selection 9 SC
Special Selection 153 SC
E Special Selection 62 SC
Total 1463
'
It is clear from that the Department has with object
F to complete quote on sanctioned posts has forwarded
requisitions as above and has requested for the action
accordingly.
Yours faithfully,
Sd/-
G (Gaya Prasad)
Senior Staff Officer (E-2Ka)
For Engineer in Chief, Irrigation Department"
19. A harmonious construction of sections 2(d), 3(2) and
3(5) would lead to the conclusion, as stated by the Division
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1221
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
Bench, that only those vacancies can be declared backlog A
vacancies, within the reserved category, which were subject
matter of advertisement but remained unfilled because of non-
availability of suitable candidates, within the reserved category,
after selection. It is only in respect of such vacancy that the
procedure qua backlog vacancy can be adopted. Any vacancy, B
which has not been subjected to a complete process of
selection, even though vacant, cannot be treated as a backlog
vacancy.
20. Section 2(d) defines a period of 12 months
commencing on 1st of July of a year as a year of recruitment C
for calculation of the number of vacancies. Section 3(1) gives
the different percentages of vacancies, which are reserved for
different categories of backward class candidates. The
percentage of vacancies reserved under Section 3(1) had tO
be filled according to the roster mechanism provided under sub- D
section 5 of Section 3. Section 2(d) would tend to indicate that
the State was required to determine the number of available
vacancies in every year of recruitment. Once the vacancies are
determined, necessary requisition would have to be sent to the
Public Service Commission for initiating the process of E
selection. We have noticed earlier the correspondence of the
Government with the Public Service Commission intimating the
number of posts to be filled at various stages.
21. In spite of the aforesaid requests, it appears that the F
posts meant for the reserved categories could not be filled. The
State Government had only partly performed its duties by
sending the necessary requisitions to the Public Service
Commission for initiating the selection process. Thereafter, the
selection process ought to have been completeci as provided G
under the Statutory Rules. It appears that the selection process
for the 367 posts was not completed. Therefore, the aforesaid
vacancies could not be termed as unfilled vacancies belonging
to the reserved categories. But, at the same time, it also can
not be disputed by anybody that the 367 posts, which are sought
H
1222 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A to be filled by special recruitment are posts, which are meant
for the reserved categories and have remained unfilled. This
is evident from the letter dated 25th October, 2005 pointing out
that out of the 887 posts mentioned in the letter dated 13th
October, 2005, 367 posts were intact reserved category posts,
B which had been lying vacant and had been wrongly included in
the general recruitment. Hence, a request was made to exclude
the aforesaid posts from the general selection and be filled by
holding a special recruitment for tHe reserved category
candidates.
c 22. The exercise of identifying the year-wise and cadre-
wise vacancies ought to have been conducted by the State prior
to the issuance of the advertisement as rightly noticed by the
learned single Judge. The purpose of introducing a roster
system was to ensure that the percentages of reservation
D provided for various categories of persons is effectively and
speedily achieved. This can only be. done if the department
concerned identifies the year-wise vacancies in the cadre.
Once the vacancies are identified, it is enjoined upon the
authorities to ensure that the selection procedure is completed
E speedily. This is necessary to avoid uncertainty to all categories
of candidates. General category, as well as, the reserved
category candidates are likely to be adversely affected in case
the vacancies are not filled within a reasonable period of time.
As a result of undue delay, certain candidates will always be
F in the danger of becoming overage to apply for some particular
posts falling in a particular year of recruitment. Unnecessary
lethargy in filling up the posts would also lead to further
uncertainty and chaos among the recruits with regard to their
seniority, confirmation and promotions. Such a situation only
G gives rise to unavoidable litigation, lasting for many long years.
This case epitomizes such malaise.
23. In our opinion, the State Government, in the present
case, ought to have initiated the necessary selection procedure
upon due verification of the posts available for the reserved
H
STATE OF U.P. AND ORS. v. SANGAM NATH 1223
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
categories. It was not sufficient to merely send the requisition A
to the Public Service Commission. It was necessary for the
State to pursue the matter with the Public Service Commission
for· completion of the selection process. Otherwise, the very
purpose of introducing the roster system and a running account
would be totally defeated. We may reiterate here the B
observations made by this Court in the case of R. K. Sabharwal
(supra). With regard to the operation of the roster system, in
the aforesaid case, it was observed as follows:- ·
"5. We see considerable force in the second contention
raised by the learned counsel for the petitioners. The C
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 D
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 E
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, p5, 72, 80, 87
and 91 have been reserved and earmarked in the roster
for the Scheduled Castes. Roster points 26 and 76 are F
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 G
thereafter the said class is entitled to 7th, 15th, 22nd and
onwards up to 91 st 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 H
1224 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A earmarked in the roster for the Scheduled Castes and the
Backward Classes are filled the percentage of reseNation
provided for the reseNed 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
B 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 suNive. The percentage of reseNation is the desired
representation of the Backward Classes in the State
c SeNices 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
D
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
E 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
F 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
G there shall neither be shortfall nor excess in the percentage
of reseNation.
6. The expressions 'posts' and 'vacancies', often used in
the executive instructions providing for reseNations, are
H rather problematical. The word 'post' means an
STATE OF U.P. AND ORS. v. SANGAM NATH 1225
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
appointment, job, office or employment. A position to A
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 B
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' c
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 D
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. E
Union of India (1992 Supp (3) SCC 217) observed as
under: (SCC p. 737, para 814)
'Take a unit/service/cadre comprising 1000 posts. The
reservation in favour of Scheduled Tribes, Scheduled F
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 G
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/
padre is taken as a unit and the backlog is sought to be H
1226 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
c 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
0 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."
The facts narrated above would indicate is that the situation in
the present case is almost as it was depicted by this Court in
E the case of Indra Sawhney (supra).
We, therefore, reiterate that it is necessary for the department
to identify year-wise vacancies for the cadre. It is also
necessary to fill up the posts speedily in order to avoid certain
F candidates being rendered ineligible as they may have become
overage. It is for this reason that Section 3 has placed
importance on the year of recruitment as also on the process
of selection. In our opinion, the authorities have been rather
casual in their approach in implementing the reservation policy,
G in letter and spirit. We are, however, conscious of the fact that
the 367 posts lying vacant for a number of years are meant only
for the reserved categories. They have been calculated on the
basis of the percentages reserved for various categories. In
segregation of the aforesaid posts, none of the unreserved
H categories would be deprived of any posts which ought
STATE OF U.P. AND ORS. v. SANGAM NATH 1227
PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.]
legitimately to have fallen to their share. A
24. Therefore, we are of the considered opinion that the
interest of justice, in the peculiar facts of this case, demands
that the course adopted by the State Government in
segregating 367 posts for special recruitment ought not to be
8
disturbed. For the aforesaid reasons, we are unable to agree
with the direction issued by the Division Bench in the impugned
Judgment.·
25. Before we part, we may also notice that all the writ
petitioners have participated in the selection process and C
remained unsuccessful. Therefore, none of their legal rights has
been infringed.
26. In view of the above, the appeal is allowed. The
Judgment of the Division Bench is set aside. D
Civil Appeal No. 4381 of 2010
In view of the judgment passed in Civil Appeal No. 4360
of 2010, this appeal is also allowed and the Judgment of the
Division Bench is set aside. E
B.B.B. Appeals allowed.
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