The calculation of quotas for dependents of freedom fighters, physically handicapped, and ex-servicemen should be based on a percentage of the total vacancies, not as a percentage of the vacancies in the respective category.

The Public Service Com mission, U. P. issued an advertisement bear ing number A-1/e-1/94-95 for Combined State/upper Subordinate Service (Prelimi nary) Examination, 1994 notifying 375 vacancies which later became 384. The petitioner appeared in the aforesaid ex amination but was not declared successful for the main examination. He has claimed himself to be a dependant of a Freedom Fighter, Sri Badri Pal Mishra, being his grandson and has asserted that since the respondent-Commission, fixed 40% marks as pass marks in preliminary examination and he has secured more than that percent age, he ought to have been declared success ful, as the dependants of freedom fighters are entitled to reservation of 2% of the vacancies in view of the provisions of Sec tion 3 of the U. P. Public Services (Reserva tion for Physically Handicapped, Depen dants of Freedom Fighters and Ex-Ser vicemen) Act, 1993 (hereinafter referred as 1993 Act) and of the Government Order No. 18/1/95-Ka-2/95, dated 4. 3. 1995 issued by the Secretary to U. P. Administration.

2. In order to appreciate the controver sy involved, it is necessary at this stage to refer to the relevant statutory provisions and also the government orders. Section 3 of the Uttar Pradesh Public Services (Reser vation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (here-in after referred as 1994 Act) provides for reservation in favour of per sons belonging to these classes in public services and posts at the stage of direct recruitment as per following percentage of vacancies:

(a) in the case of Scheduled Castes

-21%

(b) in the case of Schedu led Tribes - 2%

(c) in the case of other Backward Classes of citizens - 27%

Section 3 of the 1993 Act provides for reservation of vacancies in favour of physi cally handicapped, dependants of freedom fighters and ex-servicemen. Sub-sections (1) to (3) of Section 3 which are material for the present case, read as under:

" (1) In public services and posts in connec tion with the affairs of the State there shaii be reserved five per cent of vacancies at the stage of direct recruitment in favour of-

(1) physically handicapped,

(ii) dependants of freedom fighters and

(iii) ex-servicemen.

(2) The respective quota of the categories specified m sub- section (1) shall be such as the State Government may from time to lime deter mine by a notified order.

(3) The persons selected against the vacan cies reserved under sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to scheduled castes category he will be placed in that quota by making necessary adjustments: if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjust ments; if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open compensation category, he will be placed in that category be making necessary adjustments. "

3. A notification bearing No. 18/1/95-Ka-2/95, dated 4. 3. 1995 was issued by the State Government in exercise of the powers conferred by Section 3 (2) of 1993 Act providing for reservation quota for the three categories mentioned in sub-section (1) as under:

(2)

Physcially handicapped -2%

Dependants of freedom fighters 2%

Ex-servicemen -1%

The petitioner has alleged that after declaration of preliminary examination result, the Commission disclosed the following vacancies:

(1 ). Deputy Collector -15 (2 ). Dy. S. P.-34 (3 ). Superintendent Jails - 2 (4 ). A. L. Comr.-2 (5 ). TO. /a. O.-15 (6 ). D. C. H. G.-5 (7 ). B. D. O -261

(8 ). E. E. O.-3 (9 ). D. Panchayat Ofr.- 5 (10 ). Asst. E. E. O.-12 (11 ). A. A. O.-30 Total -384 He has urged that if reservation at 2% admissible for the dependants of freedom fighters (DFF) is calculated, there should be one post, reserved for them in the State ser vices and six posts in the upper subordinate services. He has claimed a writ of ma