By the Court.—We have heard Shri G.K. Singh, learned counsel for the petitioners. Shri Pankaj Saxena, learned Standing Counsel appears for the respondents.

2. All the five petitioners are Bachelors in Ayurvedic Medicine and Surgery. They do not belong to any reserved category. All of them are working as Medical Officers (Ayurvedic/ Unani) Community Health on contract basis since April, 2005. By this writ petition they have prayed for quashing the Advertisement No. 4/2009-10 issued by the U.P. Public Service Commission, Allahabad published in ‘Dainik Jagran’ on 2nd October, 2009, inviting application for selections on 137 posts of Medical Officers, Community Health (Ayurvedic/ Unani). Dr. Neeraj Kumar Shukla is co-petitioner with Dr. Vivek Kumar Singh in Writ Petition No. 1694 (S/B) of 2008 in which an interim order was made on 24.11.2008, permitting them to work on contract basis until regular selections. This fact has been placed before the Court by the Standing Counsel and is stated in paras 13 and 16 of the counter-affidavit of Dr. Jaishanker Shukla filed on behalf of the State respondents.

3. The Advertisement No. 4 of 2009-10 issued by the Commission inviting applications for 137 posts of Medical Officers (Ayurvedic and Unani) Community Health Cadre has bifurcated the posts for OBC (22), SC (96) and ST (90). In this manner all the 137 advertised posts are in the reserved category.

4. Shri G.K. Singh, learned counsel for the petitioner has challenged the advertisement on the ground that there are in all 1678 posts of Medical Officers, Community Health (Ayurvedic/ Unani) in the State of U.P. out of which 50% posts have to be unreserved, and remaining reserved for OBC, SC and ST in accordance with Section 3 of the U.P. Public Services (Reservation for SC, ST and OBC) Act, 1994.

5. In the year 1995-96 by Advertisement No. 3 of 1995-96, 47 posts of Medical Officers (Ayurvedic/ Unani) were advertised including 42 posts for SC and 5 for ST. In the year 1996-97 433 posts were advertised vide Advertisement No. 1/ 1996-97 out of which 389 posts were reserved for SC and 44 for ST. These advertisements were challenged in the High Court in Writ Petition No. 30542 of 1996, which was allowed on 20.5.1998. The judgment was affirmed in appeal, on 20.5.1998, Shashi Kant Rai and others v. State of U.P., 1998 (3) AWC 1821.

6. In the year 2003, 367 posts were advertised. All these posts were reserved for candidates belonging to OBC (149), ST (25) and SC (193). They were all treated to be backlog vacancies. The advertisement was challenged by one Dr. Chandra Prakash Pandey by filing Writ Petition No. 40656 of 2003. It is stated in para 9 of the writ petition that the aforesaid writ petition was withdrawn, with the result all the vacancies were filled up. The date of withdrawal of writ petition has not been given. It is thereafter stated in para 12 that the appointments made in the year 2003 were challenged in Writ Petition NO. 65734 of 2008 filed by Dr. Vivek Singh and others and in Writ Petition No. 10014 of 2009, which are still pending for consideration.

7. It is stated in para 15 that the State Government considering the fact that 840 unreserved category candidates in the cadre, are working in the department, sent a requisition for advertisement of the remaining posts in reserved categories. The petitioners are at present working on contract. They have become overage. They alleged that since the unreserved posts have not been advertised, they did not get a chance to be considered for appointment.

8. Shri G.K. Singh, learned counsel for the petitioner submits that the word ‘backlog’, for the vacancies means that the vacancies should have been advertised atleast once, and could not be filled up on account of non-availability of candidates. He submits that these 137 vacancies all belonging to reserved categories were never advertised earlier, and thus the advertisement is in the teeth of Section 3 of the Act of 1994 and is liable to