N.N. Tiwari, J.- These writ petitions pose the common questions based on identical factual backgrounds and with the consent of the parties, the same have been heard together and are being disposed of by this common judgment.

2. The petitioners have made three fold prayers in these writ petitions:-

(i) For declaring Section 4(6) of the Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. & OBC) Act, 2001 ultra vires, being violative of the provisions of Article 16 of the Constitution of India.

(ii) For quashing Memo No. 2377 dated 13.6.2007 (Annexure-5) whereby the respondent Nos. 4 & 5 have published the provisional seniority list of Executive Engineers by giving benefit of 85th Amendment of the Constitution of India to the Scheduled Castes and Scheduled Tribes without following the guidelines framed by the Hon'ble Supreme Court in the case of M. Nagraj & Ors. vs. Union of India & Ors. [2006(8) SCC 212].

(iii) For direction on the respondents not to grant promotion to the Scheduled Castes and Scheduled Tribes Officers in excess of their quota in pursuance of 85th Amendment of the Constitution of India contrary to the guidelines of the Hon'ble Supreme Court in the case of M. Nagraj & Ors. vs. Union of India & Ors. 3. As agreed by learned counsel for the parties, W.P.(S) No. 3924/2007 has been taken as the lead case. The case briefly stated is that the petitioners are the Executive Engineers in the Water Resources Department, Government of Jharkhand. The said Executive Engineers are to be next promoted to the post of Superintending Engineer. There are 47 posts of Superintending Engineer in the Water Resources Department as on 1.1.2007.

4. The State of Jharkhand came with a legislation for providing reservation to different classes, namely, Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. & G.B.C.) Act, 2001 [hereinafter referred to as 'the said Act']. Section 4(6)(Ka) of the said Act has been challenged by the petitioners. The said Section provides that "in case of non-availability of suitable candidates from Scheduled Castes and Scheduled Tribes for appointment and promotion against the reserved vacancies, the reservation for them in the vacancies shall continue for three recruitment years and if suitable candidates are not available even in the third year, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled up by exchange shall be treated as reserved for the candidates of that particular category who are actually appointed.

5. Section 4(2) of the said Act provides for 73% reservation for the candidates of reserved categories. The said provision was challenged in this Court in W.P.(PIL) No. 3696/2002 and W.P.(PIL) No. 4707/2001. An interim order was passed in the said writ petitions directing the State Government not to reserve the posts exceeding 50%. Accordingly, 10% of the total seat are reserved for Scheduled Castes candidates and 26% of the total seat are reserved for Scheduled Tribes candidates. For the total strength of 47, the seat position of different categories is as follows:-

General category 22

Scheduled Castes Category 10

Scheduled Tribes Category 5

Vacant position

6. According to the said distribution, 10 posts of Superintending Engineer are occupied by Scheduled Castes category which is more than 10% of the total strength. 5 posts are occupied by the Scheduled Tribes category which is less than the quota of 10 seats reserved for Scheduled Castes category. The vacant posts of Superintending Engineers are to be filled up by the candidates according to their seniority in the gradation list. If the vacant post is reserved for the Scheduled Castes candidates by giving them promotion, the percentage fixed for the Scheduled Castes category will exceed from 10%, contrary to the provisions of Section 4(6)(Ka).

7. It has been stated that at present more than 10% seats are reserved for Scheduled Castes category, but ther