The State can make provisions for appointment in favor of any backward class unless they are adequately represented in the service of the State, and can identify and reserve vacancies for SC/ST communities.

1. The petitioner has filed the writ petition under the premises that his daughter was an applicant to the post of Village Administrative Officer for which applications were called for by the Tamil Nadu Public Service Commission by publishing a notification in "The Hindu" dated 21.07.2010,. In that notification, it was indicated that the the post of Village Administrative Officer in the Tamil Nadu Ministerial Service would have 1576 vacancies and the short fall vacancies in respect of SC/ST communities were identified as 1077. The petitioner belongs to Backward Class Community and his daughter had applied for the said post pursuant to the advertisement. He has come forward with the present writ petition challenging the said advertisement on the ground that 1077 posts of Village Administrative Officer notified as shortfall vacancies earmarked for SC/ST communities is illegal and contrary to ground reality.

2. In the affidavit filed in support of the writ petition, the petitioner has contended that there is no such shortfall vacancies in respect of SC/ST communities and for each year, the vacancies were filled up with due reservation meant for those communities. Therefore, any excess vacancies for accommodating candidates from SC/ST communities will be unconstitutional.

3. In the present case, it must be noted that the Government is empowered to fill up posts exclusively for SC/ST communities, which is otherwise known as catch up rule/backlog vacancies. By the 81st amendment made to the Constitution, Article 16(4-B) has been introduced, which reads as follows:

"16. Equality of opportunity in matters of public employment:-

(4-B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the y ear in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year."

Such a constitutional provision has been made necessary in order to give effect to Article 46 of the Constitution, which reads as follows:

"46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections:-The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."

Therefore, though the Courts have held that Article16 (4-B) of the Constitution of India is an enabling provision, in the present case, the State Government, on identifying the estimated number of vacancies in the post of Village Administrative Officer for the years 2007-2008, 2008-2009 and 2009-2010 has issued G.O.Ms. No. 123 Revenue Department dated 11.03.2010. In the said Government Order, it is stated that the number of posts for which sanction was made was 12,506; the posts, which were created by retirement were 3,621; the short fall vacancies in respect of SC/ST were 1077 and the posts for which appointments were to be made on the basis of earlier waiting list were 443; the number of vacancies to be filled up by way of compassionate appointment was estimated to be 525; the backlog vacancies were 2045 and persons to be recruited by Tamil Nadu Public Service Commission were 1576. On the basis of the said Government Order, a direction was issued to the Tamil Nadu Public Service Commission to fill up the vacancies and consequently, a letter dated 16.04.2010 was addressed to the Tamil Nadu Public Service Commission by the Secretary to Government. It is only based on the direction by the State Government, the Tamil Nadu Public Service Commission adv