Hon’ble B. Amit Sthalekar, J.—This is a writ petition by the petitioner seeking a direction to the U.P. Public Service Commission, Allahabad (hereinafter referred to as ‘Commission’) to declare the petitioner as having been selected for the post of Assistant Commissioner (Trade/Commercial Tax) in the State Combined/Upper Subordinate Services Examination, 2009 by treating three posts as belonging to reserved category of dependents of freedom fighters instead of two posts. Certain other reliefs have also been sought by the petitioner with regard to application of the scaling system and evaluation of the answer sheets.

2. Briefly stated the facts of the case are that an Advertisement No. A-1/E-A/209 dated 4.4.2009 was issued by the Commission inviting applications in respect of posts in the State Service known as the Combined State/Upper Subordinate Services Examination, 2009. The total number of posts were 754 although initially the advertisement only mentioned 100 vacancies but the same were subject to increase or decrease.

3. The case of the petitioner is that in his application form for the Main Examination, he had given first preference for the post of Deputy Collector, the second preference for Deputy S.P., the third preference for the post of Assistant Commissioner (Trade/Commercial Tax) and the the fourth preference for the post of Treasury Officer/Account Officer. The further contention of the petitioner is that reservation to the dependents of freedom fighters has been provided in terms of the Provisions of the Uttar Pradesh Public Service Commission (Reservation for Physically Handicapped, Dependents of Freedom Fighters, an Ex-Servicemen) Act, 1993 (Act, 4 of 1993). The reservation quota fixed for dependents of freedom fighters was 2%. This reservation was to be applied horizontally and not vertically.

4. The contention further is that the number of posts of Assistant Commissioner (Trade/Commercial Tax) was 134 and by applying the reservation quota of 2% for dependents of freedom fighters, the figure comes to 2.68 and if the .5 and above is rounded off to 1, the total number of posts available under the dependents of freedom fighters quota would be 3 posts, but the Commission has illegally offered only 2 posts, which is totally against the spirit of the reservation policy applicable to the reserved category. According to the petitioner if the 2% reservation for dependents of freedom fighters had been correctly adopted and the principle of rounding off correctly applied then 3 posts would have become available under the dependents of freedom fighters quota and the petitioner would have found a berth against the said post.

5. We have heard Sri Keshari Nath Tripathi, learned senior counsel assisted by Sri C.P. Gupta, learned counsel for the petitioner as well as Sri Yogendra Kumar Yadav, learned Standing Counsel and Sri A.K. Sinha, learned counsel appearing for the respondent No. 2-Commission.

6. The short controversy in the case is as to whether the principle of rounding off ought to have been applied in the case of horizontal reservation and, if so applied, 2.68 could be treated as 3, in which case instead of 2 posts reserved for dependents of freedom fighters, 3 posts would have become available. It has been submitted by Sri Keshari Nath Tripathi, learned Senior Counsel that the minimum marks obtained by the last selected candidate for the post of Assistant Commissioner (Trade Tax) in the dependents of freedom fighters category was 1059.24, whereas, the petitioner had obtained 1058.42 marks out of 1700 marks and thus he has missed appointment by a narrow margin of only 0.82 marks which is less than 1 mark.

7. The further contention of the learned counsel for the petitioner is that out of the total 134 posts of Assistant Commissioner (Trade Tax), 2% reservation in favour of dependents of freedom fighters would come to 2.68 and if the principle of rounding off had been applied, 3 posts would have become available