J.R.MUDHOLKAR, J.

(1) THE petitioner, who is a graduate, is an Assistant in Grade IV of the central Secretariat Service, having been recruited therein in the year 1956. He became permanent on 1/01/1958. The next post which the petitioner can expect to get is that of Section Officer (Assistant Superintendent) in the same service. Recruitment to the post of Section Officer is made in the following manner : (i) 40 by direct recruitment from those who obtained lower ranks in the I.A.S. etc., examination ; (ii)30 by promotion from Grade IV to Grade III on the basis of a departmental examination held at intervals by the U.P.S.C. (iii)30 by promotion from Grade IV on the basis of seniority-cum-fitness.

(2) ON 6/02/1960 the Union Public Service Commision issued a notification to the effect that a limited competitive examination for promotion to the regular temporary establishment of Assistant Superintendents of the central Secretariat Service would be held in June, 1.960. The notification further stated that a reservation of 12½ of the vacancies would be made for members of the Scheduled Castes and 5 for members of Scheduled Tribes. The result of this examination was announced by the Union public service commission in April, 1961. The Union public service commission recommended 16 candidates for being appointed in unreserved vacancies and 28 candidates in reserved vacancies. Subsequently the U.P.S.C. recommended 2 more candidates belonging to the Scheduled Castes/Tribes for the posts. It may be mentioned that the number of vacancies which were expected to be filled was stated to be 48 out of which 16 were unreserved and the remaining 32 reserved, though in fact the U.P.S.C. recommended the names of only 30 candidates for the latter class of vacancies. The government, however, made only 45 appointments out of which 29 were from among the candidates belonging to the Scheduled Castes and Tribes.

(3) THE petitioner points out that the percentage of marks secured by him at the examination was 61 whereas the percentage of marks secured by some of the 29 candidates from the Scheduled Castes and Tribes was as low as 35 and one of his grievances is that it was not competent to the U.P.S.C. to prescribe one qualifying standard for members of the Scheduled Castes and Tribes and another for the rest of the candidates.

(4) IT is the petitioners case that had the Union of India and the U.P.S.C. adhered to the quota of 17-1/2 reservations in favour of Scheduled Castes and Tribes he would have had a fair chance of being selected to the post of Assistant Superintendent. His grievance is that the reservation actually made in this case comes to 65 and was far in excess of that set out in the notification of the U.P.S.C., pursuant to which the competitive examination was held. Had the reservation been limited to 17-1/2 only 8 vacancies could have gone to the members of the Scheduled Castes and Tribes and the rest to other candidates according to their merit.

(5) THE petitioner points out that the respondents, that is, the Union of India and the Union Pubilc Service Commission seek to justify their action by relying upon what is known as `the carry forward rule`. In order to understand what the aforesaid rule is it is necessary to refer to certain resolutions of the government of India in the Ministry of Home Affairs. On 13/09/1950, the government of India published a resolution indicating their policy in regard to communal representation in the services. There they have stated that the following reservations would provisionally be made in recruitment to the posts and services under them : (a) Scheduled Castes : Reservation of 12½ of vacancies by direct recruitment through the Union public service commission or by means of open competitive tests held by any other authority. Where recruitment is made otherwise than by open competition the reservation will be 16-2/3 . (b) Scheduled Tribes: both in recruitment by o