VISHWAJEET SINGH vs STATE OF U. P. - 2009 Supreme(All) 1586

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(All) 1586

[2009(4) ADJ 373]
ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND ARUN TANDON, JJ.
Dr. VISHWAJEET SINGH AND OTHERS .....Petitioners
Versus
STATE OF U.P. AND OTHERS .....Respondents
(Civil Misc. Writ Petition Nos. 48149 of 2003 with 53581, 5902 of 2005, 54882, 55910 of 2008, 5632 of 2007, 6162 of 2006 and 15936 of 2008, decided on
20th April, 2009)

Advocates:
Counsel :
Rajeev Mishra and P.S. Baghel for the Petitioners; Jaideep Mathur, Addl. Advocate General for State; H.N. Singh for Higher Education Service Commission.

Headnote:(A) Reservation—Appointment—Post of Lecturers in different subjects in various Graduate and Post Graduate Colleges in U.P.—Advertisement No. 37, dated 9.7.2003, published on 16.7.2003, issued for—By special recruitment to fill up carry forward and backlog vacancies of reserved category candidates—By impugned advertisement 838 vacancies were sought to be filled—Out of 838 vacancies, 467 were vacancies which came into existence upto 30.6.2003—These vacancies could not have reserved only for candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes—These vacancies were never advertised earlier—Therefore, for these vacancies General category candidates had also right to participate—These vacancies were not backlog vacancies—Its reservation only for S.C., S.T. and O.B. Class candidates—Violates Articles 14 and 16(1) and cannot be included with remaining 371 carry forward vacancies—As such advertisement No. 37, so far as it advertised 467 vacancies—Deserves to be quashed—But so far as it advertises 371 carry forward vacancies—Has to be maintained—Director shall take steps for advertising 471 vacancies, applying rules of reservation and roster, college wise and subject wise—Selection process initiated for remaining 371 carry forward vacancies—Should be proceeded to its logical end—Government Order dated 3.7.2002, in so far as it directs computation of reservation on basis of entire cadre instead of vacancies—Being not in accordance with law—Also quashed—Several other relevant aspects—Considered, clarified and highlighted. [Constitution of India, Articles 14 and 16(1)].
        [Paras 21, 23, 25, 95 and 96]
       (B) Reservation—Appointment—Post of Lecturers in different subjects in various Graduate and Post Graduate Colleges in U.P.—Carry forward vacancies shall not be considered together with vacancies of year in recruitment for purposes of ceiling limit of 50% reservation of total vacancies of that year, in view of Section 3(2) of 1994 Act—Word 'unfilled' used in this Section, has to be given meaning as per Scheme of 1994 Act—Section 3(1) provides for reservation at stage of direct recruitment—Backlog vacancies are those vacancies which were advertised earlier but could not be filled up. [U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994—Sections 3(2) and 3(1)]. [Para 20]
       (C) Reservation—Appointment—Post of Lecturers in different subjects in various Graduate and Post Graduate Colleges in U.P.—Mere fact that Lecturers in different subjects, carry same pay scale—Cannot be a ground for clubbing together all posts of Lecturers in different subjects—Subject-wise vacancies of different subjects in one college—Form a separate unit for applying rules of reservation—It is also relevant that for applying rules of reservation there has to be more than one post—Subject wise reservation, if not applied—Would give rise to uncertainty and serious consequences—It would also be violative of Article 16 and Section 3(2) of 1994 Act—Government Order dated 1.8.2003—Not in accordance with law laid down by Apex Court in its various decisions—Ceiling of 50% reservation can be applied only when there are more posts than one—Principles of rounding off—When applicable—Considered and clarified—Entire law on reservation—Filtered from various decisions of Supreme Court—Elaborated—High Court directed for applying reservation in accordance with principles filtered and indicated in this case. [U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994—Section 3(1)—Constitution of India—Article 16].
        [Paras 43, 47, 49, 60 to 62, 66, 67, 70, 71, 74, 85, 86, 92 and 93]

JUDGMENT

Hon’ble Ashok Bhushan, J.—The issues raised in the above writ petitions being inter-related, the writ petitions have been heard together and are being disposed of by this common judgment. Civil Misc. Writ Petition No. 48149 of 2003, Dr. Vishwajeet Singh and others v. State of U.P. and others contains extensive pleadings of both the parties hence, the same is being treated as leading writ petition. The other writ petitions are to be decided on the basis of the decision in the leading writ petition.

2. We have heard Sri Rajeev Misra, Sri P.S. Baghel Advocates for the petitioners,Sri Jaideep Mathur, Additional Advocate General for the State respondents and Sri H.N. Singh, learned Counsel for the respondent Higher Education Service Commission.

3. It is sufficient to refer to the pleadings of writ petition No. 48149 of 2003, Dr. Vishwajeet Singh, the leading writ petition for considering the issues raised in this bunch of writ petitions. The facts of the leading writ petition are; the petitioners of the writ petition who are four in numbers claim to be duly qualified for appointment on the post of Lecturer in Graduate/Post Graduate Colleges in the State of U.P., have challenged the advertisement No. 37 dated 9.7.2003 published on 16.7.2003 and have also prayed for quashing the Government orders dated 3.7.2003 and 17.4.2003. By advertisement No. 37, the U.P. Higher Education Service Commission has advertised 838 posts of Lecturers in different subjects in various Post Graduates/Graduate Colleges in the State of U.P. by special recruitment to fill up the carry forward and backlog vacancies of reserved categories candidates. All the posts in different subjects have been shown to be reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes. The advertisement mentions number of vacancies in different subjects. The applications have been called separately for different subjects. The advertisement further mentions that guidelines and list of the colleges shall be made available along with the application form. The Government order dated 3.7.2002 was issued for filling up the backlog vacancies of reserved category candidates referring to U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Class Amendments) Ordinances, 2003 (U.P. Ordinance No. 2 of 2002). The Government order mentions that calculation of reserved vacancies shall be made not on the basis of vacancies but on the cadre strength. Letter dated 4.7.2007 has been issued by the Chief Secretary, State of U.P. to the Principal Secretary/Secretary referring to the Government order dated 3.7.2002 for filling up the backlog vacancies of reserved category. The Government order dated 7.4.2003 is also on the same subject of filling the backlog vacancies of reserved category candidate. Petitioner’s case in the writ petition is that the entire cadre cannot be taken as a unit for computing reservation for applicability of U.P. Public Services (Reservation of Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as 1994 Act). It is further stated that in the advertisement dated 9.7.2003, two types of vacancies have been clubbed, one carry forward vacancies of advertisement No. 29 and secondly the vacancies which have come into existence in the year 2002-03 i.e. a year preceding the year of recruitment. The writ petitioner has prayed for following reliefs :

“(i) Issue a writ, order or direction in the nature of Certiorari to quash the advertisement dated 9.7.2003 as published in the daily News Paper ‘Dainik Jagaran’ in it’s daily edition dated 16.7.2003 issued by the respondent No. 4, the Secretary, U.P. Higher Education Service Commission, Allahabad, (Annexure-24 to the writ petition);

(ii) issue a writ, order or direction in the nature of Certiorari to quash the Government orders dated 3.7.2002 and 17.4.2003 issued by the respondent No. 2, the Principal Secretary, Government of U.P. Luck

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2009 Supreme(All) 1586

Cases Referred (15)