IMPORTANT POINT
Reserved category posts, if remaining unfilled, can be carried forward as backlog vacancies.

Headnote:(a) Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 – Section 3(2) – Enables the State to carry forward the unfilled vacancy/vacancies to be filled through special recruitment as a separate class of vacancy – Such class of vacancy cannot be intermingled with the vacancies of the year of recruitment in which it is filled – It also cannot be counted for the purpose of determining of ceiling of 50 per cent reservation of the total vacancies of that year. (Para 27)
       (b) Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 – Section 3, Second Proviso; section 3(2) and 3(5) r/w section 2(d) – Restriction on percentage of reservation in a year as also in the cadre – Carry forward of unfilled reserved vacancies – Backlog vacancies within reserved category – Which were subject matter of advertisement but remained unfilled because of non-availability of suitable candidates, after selection – Any vacancy, which has not been subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy. (Para 26, 33)
       (c) Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 – Section 3 – 367 reserved posts – Selection process not completed – Though not strictly unfilled remaining unfilled – Had been wrongly included in general recruitment – Segregation not unjustified. (Para 37)
       Indra Sawhney; R.K. Sabharwal; M. Nagaraja; Ramesh Kumar – Relied upon
       (d) Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 – Service Law – Recruitment – Candidates participating in selection process and remained unsuccessful – No infringement of their legal rights. (Para 46)
       Facts of the case:
       Recruitment process was initiated for recruitment to 887 posts out of which 367 posts were earmarked for reserved category candidates. An option was given to 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 appear to have given their option for the Special recruitment category of 367 posts. The interview was held thereafter between 21st November, 2005 to 12th January, 2006 for 520 posts for general recruitment and 367 posts for special recruitment. The final results were declared on 12th March, 2006. Respondent No. 1 to 3 and 5 had qualified in the written examination and had appeared in the interview but all these respondents remained unsuccessful in the final selection.
       Eight unsuccessful candidates belonging to the General category filed four writ petitions in the High Court. 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 are to be filled up by way of a special recruitment.
       The Division Bench held that the 367 vacancies cannot be termed as backlog vacancies and therefore then action of segregating these vacancies is not valid.
       Finding of the Court:
       Impugned judgment is not sustainable.
       Result:
       Appeals allowed.

JUDGMENT

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 1 2006 whereby the Division Bench of the High Court observed that the action of the State in treating 367 vacancies 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 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 legislative provisions which govern the field of reservation in Public Services, in the State of Uttar Pradesh. Initially, the reservation in public 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 Scheduled Castes, Scheduled Tribes and Other Backward 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 India1. The aforesaid act repealed the Uttar Pradesh Public Services (Regulation for Backward Classes) 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.

3. The 1994 Act itself was amended by the Uttar Pradesh Public Service (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 Interim Order dated 21st January, 2002 directed that no executive order, in pursuance of the aforesaid Act of 2001, shall be passed during the pendency 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 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 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).

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 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:-

Scheduled Castes 21%

Scheduled Tribes 2%

Other Backward Classes 27%

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.

5. In accordance with the aforesaid formula, a requisition was made 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 issue

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2010 Supreme(SC) 1212

IMPORTANT POINTReserved category posts, if remaining unfilled, can be carried forward as backlog vacancies.

IMPORTANT POINT
Reserved category posts, if remaining unfilled, can be carried forward as backlog vacancies.