Back
2022 Supreme(UK) 131
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
MANOJ KUMAR TIWARI, J.
Kavita Arya & others - Petitioners
Versus
State of Uttarakhand & another - Respondents
Writ Petition (S/S) No. 1226 of 2020
Decided On : 06-04-2022
For the Petitioner: Mr. R.C. Tamta & Ms. Meenu.
For the Respondent:Mr. M.C. Pande, Additional Advocate General with Mr. V.S. Rawat, Standing Counsel and Mr. Rajendra Dobhal & Mr. Hari Mohan Bhatia.
The Reservation Policy must be implemented until adequate representation is achieved, and vacancies thereafter should be filled from the respective category. Excessive reservation violates the right to equality of opportunity.
Headnote:
Reservation Policy - Pharmacist Appointment - Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 - Section 3(5)
Fact of the Case:
Petitioners, qualified for Pharmacist appointment, challenge the advertisement for not reserving adequate posts for Scheduled Caste. Respondent states that only one post is vacant for S.C. category as per Reservation Policy.
Finding of the Court:
The court finds that the advertisement does not violate the Reservation Policy as there is only one vacant post for Scheduled Caste as per the cadre strength.
Issues: Challenge to advertisement for Pharmacist appointment and compliance with Reservation Policy.
Ratio Decidendi: The Reservation Policy must be implemented until adequate representation is achieved, and vacancies thereafter should be filled from the respective category. Excessive reservation violates the right to equality of opportunity.
Final Decision: Writ petition is disposed of, and the interim order is vacated. Petitioners are granted liberty to approach respondent no. 2 highlighting the discrepancy in the cadre strength.
JUDGMENT :
Heard learned counsel for the parties.
2. According to petitioners, they possess all requisite qualification for appointment as Pharmacist in Department of Ayurvedic & Unani Services. Petitioners belong to Scheduled Caste category. Their grievance is that in the advertisements issued by respondent no. 2 inviting applications for the post of Pharmacist in recent past, adequate number of posts were not reserved for persons belonging to Scheduled Caste. This, according to them, violates Reservation Policy of the State. They have challenged the advertisement dated 26.09.2020, on the ground that out of 71 posts, which were advertised, only one post is reserved for S.C. category.
3. Perusal of impugned advertisement reveals that it was issued for amending earlier advertisement, issued on 24.09.2020. In the earlier advertisement (Annexure-5 to the writ petition), no post was reserved for persons belonging to Scheduled Caste and Other Backward Classes, while in the impugned advertisement, one post is reserved for S.C. category persons.
4. The relief sought by petitioners in this writ petition are as follows:-
“I. issue a writ, or order or direction in the nature of certiorari quashing the amended advertisement no. 4472/G-23/2020-2021/Adhi dated 26.09.2020 issued by the respondent no. 2 (As Annexure No. 6).
II. Issue a writ, order or direction in the nature of mandamus commanding/directing the respondents to comply the roster of reservation on the post of Ayurvedic Pharmacist as per the prescribed law.”
5. Learned counsel for the petitioners contends that 19% posts in State services are required to be reserved for persons belonging to Scheduled Caste as per the Reservation Policy, therefore out of 71 vacancies, which were advertised, at least 19%, i.e., 13 posts should be reserved for Scheduled Caste category persons. Thus according to him, respondents have acted contrary to Reservation Policy of the State by not reserving adequate number of posts for Scheduled Caste category persons.
6. A counter affidavit has been filed by Director, Ayurvedic & Unani Services (respondent no. 2). In paragraph no. 4 of the counter affidavit, vacancy position in the cadre of Pharmacist on the date of advertisement, i.e., 26.09.2020 has been given in tabular form. From perusal of the same, it is revealed that as on 26.09.2020, there were total 692 sanctioned posts of Pharmacist in the department; out of which, 130 were held by persons belonging to Scheduled Caste category; 27 were held by persons belonging to Scheduled Tribe category and 97 posts were held by persons belonging to Other Backward Classes. It further reveals that as per Reservation Policy, against 692 sanctioned posts of Pharmacist, 131.48 are required to be reserved for Scheduled Caste; 27.68 are required to be reserved for Scheduled Tribe and 96.88 are required to be reserved for Other Backward Classes. By rounding off the number of posts, which are liable to be reserved for S.C., S.T. & O.B.C., the figure comes to 131 for S.C., 28 for S.T. and 97 for O.B.C. category persons.
7. In the supplementary counter affidavit dated 06.01.2022 filed by respondent no. 2, it is reiterated that, as per Reservation Policy, 131 posts can be reserved for S.C. category persons and presently 130 out of 692 posts are held by persons belonging to the said category. It is further stated that since only one post reserved for S.C. category is vacant, therefore in the impugned advertisement, one post has been reserved for S.C. category person. Paragraph no. 5 of the supplementary counter affidavit is reproduced below:-
“5. That in reply to the contents of para no. 3 of the supplementary affidavit it is submitted here that the contention of the petitioner under the paragraph in reply that due to the upgradation of Ayurvedic Hospitals in the year 2016, new posts of Ayurvedic Pharmacist in the Department has been created, is misleading, rather the true fact is that vide government order no. 903/XXXX/2016-148/2011
