# Anoop Mishra v. The State of U.P. & Anr

- **Citation:** (2013) 3 ILRA 1649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-11-28
- **Case number:** Civil Misc. Writ Petition No. 28565 of 2012
- **Bench:** Vineet Saran, B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anoop-mishra-v-the-state-of-u-p-anr-42864
- **Pages:** 13

## Headnote

freedom fighters as Ex-Service man)Act
1993-Section 3(5)-Reservation to dependent
of freedom fighter-out of 134 post 2%
would be 2.68-if principle of round of
applied- as per law laid down by Apex courttotal vacancy will come-as 3 post and not
only two-as calculated by commissionconsequential direction issued.

Held: Para-22
Applying the ratio of the case law
referred to hereinabove, to the facts of
the present case, we are satisfied that
the respondents had clearly erred in
calculating
the
vacancies
for
the
category of dependents of freedom
fighters. It has not been disputed by the
respondents that against 134 posts, 2%
reservation for dependants of freedom
fighters would come to 2.68. That being
the factual position, we are satisfied that
in view of the law settled by the
Supreme Court as well as this Court the
principle of rounding off ought to have
been
applied
against
horizontal
reservation and if so applied the posts
falling in the category of dependents of
freedom fighters would be 3 and not 2.
1650 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
1998(4) AWC 259; 2007(1) AWC 282; (2005)
2 SCC 10; (2008)1 SCC 233; 2007(1) AWC
282; (2012) 8 SCC 568; (2011) 8 SCC 108.

## Text

_Characters 0–39,570 of 43,219. This is a partial read: ask again with offset=39570 for what follows._

3 All] Anoop Mishra Vs. The State of U.P. & Anr.
1649
orders cannot renew cause of action and
also will not furnish a fresh cause of
action so as to cover up entire undue
delay and laches. In my view, writ
petition, in so far as it has challenged
order dated 10.3.2003, is bound to fail
only on the ground of delay and laches.
Once this order is not to be interfered by
this
Court,
subsequent
order,
as
communicated by second impugned order
dated
28.11.2011
also
cannot
be
interfered since it only reiterates what has
already been said in 2003.

19. Even otherwise, coming on merits,
it is evident that explanation 3, provided in
G.O. Dated 12.5.1997, disentitle petitioner,
benefit of time bound scale/promotional
scale for the reason that he has forgone
promotion and therefore, not a person, who
has suffered on account of stagnation due to
lack of promotional avenues. In my view,
grievance of petitioner that he should be
given higher scale ignoring his voluntarily
forgoing promotion and that too twice, lacks
substance and is not tenable either on equity
or in law, otherwise. It is not a case where
petitioner can be said to have suffered on
account of any laxity on the part of
respondents but looking to policy, object and
purpose
of
grant
of
time
bound
scale/promotional
scale
i.e.
to
avoid
stagnation and open higher avenues to the
employees, who are not able to avail actual
opportunity of promotion to higher post, to
be compensated by giving higher pay scale.
The petitioner having not suffered the same
for his own volition, cannot be allowed to
complain. Since it is for something he
deserve to blame himself.

20. In the entirety of the facts and
circumstances, petitioner is not entitled
for any relief.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2013

BEFORE
THE HON'BLE VINEET SARAN, J.
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 28565 of 2012

Anoop Mishra... Petitioner
Versus
The State of U.P. & Anr.... .Respondents

Counsel for the Petitioner:
Sri Keshri Nath Tripathi,Sri C.P. Gupta
Sri O.P. Mishra

Counsel for the Respondents:
C.S.C., Sri A.K. Sinha, Sri V.P. Mathur.

U.P. Public Service Commission(Reservation
for physically Handicapped,dependent of
freedom fighters as Ex-Service man)Act
1993-Section 3(5)-Reservation to dependent
of freedom fighter-out of 134 post 2%
would be 2.68-if principle of round of
applied- as per law laid down by Apex courttotal vacancy will come-as 3 post and not
only two-as calculated by commissionconsequential direction issued.

Held: Para-22
Applying the ratio of the case law
referred to hereinabove, to the facts of
the present case, we are satisfied that
the respondents had clearly erred in
calculating
the
vacancies
for
the
category of dependents of freedom
fighters. It has not been disputed by the
respondents that against 134 posts, 2%
reservation for dependants of freedom
fighters would come to 2.68. That being
the factual position, we are satisfied that
in view of the law settled by the
Supreme Court as well as this Court the
principle of rounding off ought to have
been
applied
against
horizontal
reservation and if so applied the posts
falling in the category of dependents of
freedom fighters would be 3 and not 2.
1650 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Law discussed:
1998(4) AWC 259; 2007(1) AWC 282; (2005)
2 SCC 10; (2008)1 SCC 233; 2007(1) AWC
282; (2012) 8 SCC 568; (2011) 8 SCC 108.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. 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/EA/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
3 All] Anoop Mishra Vs. The State of U.P. & Anr.
1651
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 in the category of dependents of
freedom fighters but the respondents have
wrongly calculated the number of posts as
being only 2 in the category of
dependants of freedom fighters. He has
further referred to the Annexure-1 to the
counter affidavit filed by the State in
order to illustrate that so far as vertical
reservation is concerned, the respondents
have applied the rule of rounding off. By
way of illustration he has referred to the
post of Deputy Collector for which 3
posts have been allocated under the
Scheduled Castes category out of a total
number of 14 posts, whereas, if the quota
reserved for Scheduled Castes is applied
the figure comes to 2.94. Similarly for
Other Backward Class reserved category,
the total number of posts allocated for the
post of Deputy Collector is 4, whereas if
the quota prescribed for the Other
Backward Classes is applied to the total
14 posts of Deputy Collector the figure
comes to 3.78. Thus, it has been
submitted that
it
is not
that the
respondents are not aware of the rule of
rounding off but while they have applied
the
said
principle
to
the
vertical
reservation, namely, the quota fixed for
Scheduled Castes, Scheduled Tribes and
Other Backward Classes, the same
principle has not been followed in the
matter of horizontal reservation. By way
of illustration, it has been shown from
Annexure-1 to the counter affidavit that
while the posts in the womens category
against the total posts of 14 on the posts
of Deputy Collector has been shown as only
2 but as per the quota available for women
category i.e. 20% the figures come to 2.80
and therefore 3 posts should have been made
available for women. By way of illustration,
it has further been pointed out that for the
post of Assistant Commissioner (Trade Tax),
26 posts out of a total of 134 have been
allocated in the women's category and 2
posts in the category of dependents of
freedom fighters, whereas, as per the quota
of 20% for women's category and 2% for
dependents of freedom fighters the figure
would come to 26.80 and 2.68 i.e. 27 posts
and 3 posts respectively. However, for
reasons best known to the respondents the
principle of rounding off has not been
applied for horizontal reservation while
giving the benefit of the same against vertical
reservation.

8. In the counter affidavit, at the
outset a preliminary objection was raised
on behalf of the learned counsel for the
Commission, Sri A.K. Sinha that although
initially the advertisement mentioned 100
posts but subsequently the number of
1652 INDIAN LAW REPORTS ALLAHABAD SERIES
posts were increased to 134 posts.
Subsequently, the number of posts of
Assistant Commissioner (Trade Tax) was
increased to 134 when the requisition was
sent to the Commission, in which the
posts reserved for dependents of freedom
fighters against the 2% quota was shown
to be only two and this requisition has not
been challenged by the petitioner. This
document, that is, the requisition dated
25.3.2009 has been filed as Annexure-2 to
the
counter
affidavit
filed
by
the
Commission and there is no dispute that
in the said requisition the posts allocated
to the dependents of freedom fighters in
their respective quota was shown as 2.

9. The only other submission of Sri
A.K. Sinha, learned counsel for the
Commission was that under the Act, 4 of
1993, the reservation quota prescribed for
dependents of freedom fighters was 2%
and therefore, it could not have exceeded
2% and if the 2% quota of dependents of
freedom fighters is applied to the 134
posts of Assistant Commissioner (Trade
Tax), the figure would come to 2.68
which would be in excess of 2%
reservation
quota
prescribed
for
dependents of freedom fighters.

10. The State-respondents in their
counter affidavit have also taken the same
plea in para 17 that the quota of
dependents of freedom fighters is only 2%
and if 2% is applied to the 134 posts of
Assistant Commissioner (Trade Tax) it
would come to 2.68 and if 2.68 is rounded
off and treated as 3 posts the resultant
figure would exceed the 2% quota fixed
for dependents of freedom fighters. The
other plea taken by the State-respondents
in
their
counter
affidavit
is
that
reservation is to be applied according to
roster in the form of a running account
from year to year and when a vacancy
arises against a particular post the same is
to be filled from amongst persons
belonging to the category to which the
post belongs in the roster.

11. We have given our anxious
consideration to the various submissions
of the learned counsel and have perused
the documents on record.

12. First, the contention of the
petitioner in para 11 of the writ petition is
that the minimum cut off marks for the
posts of Assistant Commissioner (Trade
Tax) in dependents of freedom fighters
category was fixed as 1059.24 whereas
the petitioner had obtained 1058.48 marks
and thus the petitioner was not selected
for the said post by a narrow margin of
only 0.82 marks. The averments in para
11 of the writ petition, have not been
denied by the Commission rather it has
been stated that "the contents of para 11
of the writ petition are matter of record
need no comments." The result of the
Examination, 2009 in question is filed as
Annexure-7 to the writ petition and at
Page 53 of the paper book the minimum
marks obtained by the last dependent of
freedom fighter candidate is shown as
1059.24 which bears out the averment of
the petitioner in para 11 of the writ
petition, and the same has not denied by
the respondents.

13. Secondly, so far as the objection
raised by the learned counsel for the
Commission that the petitioner has not
challenged the requisition dated 25.3.2009
sent
by
the
State
Government
is
concerned, it has been submitted by the
learned counsel for the petitioner that this
was an internal communication between
the
State
Government
and
the
Commission and no corrigendum to that
3 All] Anoop Mishra Vs. The State of U.P. & Anr.
1653
effect was issued or published making any
amendment in the initial advertisement
and in any case it was not necessary for
the petitioner to challenge the requisition
or any handwritten calculation made
therein fixing the quota of dependants of
freedom fighters, inasmuch as it was for
the Commission to ultimately calculate
the vacancies available for the reserved
category of dependents of freedom
fighters, according to the reservation
quota prescribed for them in the Act, 4 of
1993 irrespective of any handwritten
figure mentioned in the requisition by the
State Government and the relief in the
nature of mandamus sought by the
petitioner to the respondents to treat 3
posts instead of 2 posts in the category of
dependents of freedom fighters for the
post of Assistant Commissioner (Trade
Tax)
is
perfectly
correct
in
the
circumstances.
In
support
of
his
contention, reliance has been placed by
the petitioner upon the decision of the
Division Bench of this Court reported in
1998 (4) AWC 259 , Akhila Nand Pandey
Vs. State of U.P. and others. In that case
also the petitioner therein had prayed for a
writ of mandamus commanding the
respondents to appoint him in the
Agricultural Group Services on the basis
of the result of Combine State Services
Examination, 1993 claiming to be in the
category of dependents of freedom
fighters entitled to reservation. The
Division Bench held that it was the duty
of the Commission to enforce the
notification dated 4.5.1995 issued in
terms of the provisions of Act, 4 of 1993
and therefore, the Commission cannot
take shelter of an alleged default made by
the State in not intimating to the
Commission the vacancies required to be
reserved for the dependents of freedom
fighters. The Division Bench further held
that the Commission failed to act in
accordance with law inasmuch as it did
not give benefit of reservation to the
dependents of freedom fighters on the
pretext that the reservation was not made
by the State Government. Paras 1, 9 and
10 of the said judgment read as follows:

"1. The petitioner has prayed for a
writ of mandamus commanding the
respondents to appoint him in the
agricultural group services on the basis of
the result of Combined State Services
Examination of 1993 claiming to be in the
category of dependants of freedom
fighters entitled to reservation.

9. The provisions of U.P. Act No. IV
of 1993 as contained in Annexure-2 to the
writ petition, provide for reservation to
the dependants of freedom fighters. The
reservation to this category to the extent
of 2% of the post, is admitted to the U.P.
Public Service Commission respondent in
paragraph 5 of the counter affidavit
wherein, it has been specifically stated
that according to the Notification No.
18.1.95-ka-2/95, issued by the State
Government on 4th May, 1995, the
reservation for dependants of freedom
fighters of physically handicapped and
ex-army personnel are in the ratio of 2:2:1
respectively.

10. It is, therefore, evident that the
dependants of freedom fighters were
entitled to reservation on the 2% posts for
which the examination was conducted by
the U.P. Public Service Commission. The
advertisement was made for 200 posts
and, it appears that ultimately, selection
was made for 206 posts. Hence quota
available to the category of dependants of
freedom fighters, comes to 4 in number.
The reservation,therefore, should have
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
been made on the 4 posts in the Combined
State
Services/Upper
Subordinate
Services. It was the duty of the
Commission to enforce the Notification
dated
4.5.1995
and,
therefore,
the
Commission cannot take the shelter of an
alleged default made by the State
Government
in
not
intimating
the
vacancies to the Commission required to
be reserved for the dependants of freedom
fighters. The Commission thus, appears to
have failed to act in accordance with law
inasmuch as it did not give the benefit of
reservation to the dependants of freedom
fighters on the pretext that the reservation
was not made by the State Government."

14. We are in respectful agreement
with the observations made by the
Division Bench in the case of Akhila
Nand Pandey (supra) and in view thereof
we find absolutely no substance in the
preliminary objection raised by Sri A.K.
Sinha,
learned
counsel
for
the
Commission and reject the same.

15. In 2007 (1) AWC 282, Dr. Rajesh
Kumar Tiwari Vs. State of U.P. and ors.,
also the challenge was to the inappropriate
application of reservation quota to the post
of Lecturer in Hindi. The relief in the writ
petition was one of mandamus commanding
respondents to allow the petitioner to appear
in the interview for the post of Lecturer
Hindi under the category of dependents of
freedom fighters. There also a preliminary
objection was raised on behalf of the State
that the petitioner had not laid any
foundation for the application of quota nor
had any relief been sought in this regard.
Rejecting this objection the Court in para 19
of the said judgment held as follows:

"19. With regard to the question of
relief being granted to the petitioners,
learned counsel or the respondents have
urged that the petitioners have not Laid
any foundation with regard to application
of quota nor have they sought any relief in
this regard and, therefore, this Court may
not go in to this question at all. We are
afraid that such an argument can
sustained. We are hearing these petitions
under Article 226 of the Constitution.
Once it has come to the knowledge of the
Court that the respondents have failed to
follow the statutory provisions or have
acted in violation of statutory provisions,
this Court in its extraordinary jurisdiction
can always issue a writ commanding the
respondents to apply the provisions
correctly. Article 226 of the Constitution
confers ample power on High Court to
correct an error which is manifest and
apparent on the face of the record and also
where there is apparent miscarriage of
justice. In the present case, both the
grounds are established. The contention of
the respondents is, therefore, rejected."

16. So far as the principle of
rounding off is concerned, the Supreme
Court in the case reported in (2005) 2
SCC 10, State of U.P. and another Vs.
Pawan Kumar Tiwari and others, has held
that the rule of rounding off is based on
logic and common sense. Para 7 of the
judgment reads as follows:

"7. We do not find fault with any of
the two reasonings adopted by the High
Court. The rule of rounding off based on

logic and common sense is: if part is
one-half or more, its value shall be
increased to one and if part is less than
half then its value shall be ignored. 46.50
should have been rounded off to 47 and
not to 46 as has been done. If 47
candidates would have been considered
3 All] Anoop Mishra Vs. The State of U.P. & Anr.
1655
for selection in general category, the
respondent was sure to find a place in the
list of selected meritorious candidates and
hence entitled to appointment."

17. In the case of Shiv Prasad Vs.
Government of India and others, (2008)
10 SCC 382 the Supreme Court while
dealing with vertical reservation and
horizontal reservation has held as follows:

"25. In Indra Sawheny (I), Justice
Jeevan Reddy, J. dealt with this aspect. His
Lordship observed that there are two types of
reservations; (i) vertical reservations; and (ii)
horizontal reservations. They must be so
applied as not to exceed the percentage of
reservations which is permissible under law.
This
can
be
done
by
"interlocking
reservations". His Lordship proceeded to
state:

"812.....There
are
two
types
of
reservations, which may, for the sake of
convenience, be referred to as 'vertical
reservations' and 'horizontal reservations'.
The reservations in favour of Scheduled
Castes,
Scheduled
Tribes
and
other
backward classes [under Article 16(4)] may
be called vertical reservations whereas
reservations
in
favour
of
physically
handicapped [under clause (1) of Article 16]
can be referred to as horizontal reservations.
Horizontal reservations cut across the vertical
reservations what is called interlocking
reservations. To be more precise, suppose
3% of the vacancies are reserved in favour of
physically handicapped persons; this would
be a reservation relatable to clause (1) of
Article 16. The persons selected against this
quota will be placed in the appropriate
category; if he belongs to SC category he
will be placed in that quota by making
necessary adjustments; similarly, if he
belongs
to
open
competition
(OC)
category, he will be placed in that
category
by
making
necessary
adjustments. Even after providing for
these
horizontal
reservations,
the
percentage of reservations in favour of
backward class of citizens remains and
should remain the same. This is how these
reservations are worked out in several
States and there is no reason not to
continue
that
procedure.
(emphasis
supplied)

26. A similar question came up for
consideration in Swati Gupta. There, the
petitioner appeared in the Combined PreMedical Test (CPMT) held by the State.
She was not selected. She challenged a
notification of the State Government on
the ground that the reservation was 65%
which exceeded 50% and was thus
violative of the constitutional guarantee
under Articles 14, 16, 19 and 21 of the
Constitution as also the ratio laid down in
Indra Sawhney (I). The Government of
U.P., however, issued another notification
clarifying its stand on reservations.

27. In the amended notification, it
was clarified that the reservations for the
candidates belonging to other categories,
such as, dependents of freedom-fighters,
sons/ daughters of deceased/disabled
soldiers,
physically
handicapped
candidates, etc. would be 'horizontal' and
the candidates selected in those categories
would be adjusted in the categories to
which they belong, i.e. either reserved
category
of
Schedule
Castes
(SC),
Schedule Tribes (ST), Other Backward
Class (OBC) or Open Category (OC) in
'vertical' reservation and it would not
violate constitutional guarantee.

28. The Court considered Indra
Sawhney (I), applied it to the case on
1656 INDIAN LAW REPORTS ALLAHABAD SERIES
hand and held that the submission of the
State was well founded and the contention
of the petitioner that the reservation
violated constitutional guarantee of 50%
was not well-founded. The Court stated:

"3.......The vertical reservation is now
50% for general category and 50% for
Scheduled Castes, Scheduled Tribes and
Backward Classes. Reservation of 15%
for various categories mentioned in the
earlier circular which reduced the general
category
to
35%
due
to
vertical
reservation has now been made horizontal
in the amended circular extending it to all
seats. The reservation is no more in
general category. The amended circular
divides all the seats in CPMT into two
categories
one,
general
and
other
reserved. Both have been allocated 50%.
Para 2 of the circular explains that
candidates who are selected on merit and
happen to be of the category mentioned in
para 1 would be liable to be adjusted in
general or reserved category depending
on to which category they belong, such
reservation is not contrary to what was
said by this Court in Indra Sawhney.
(emphasis supplied)."

18. In (2008) 1 SCC 233, Bhudev
Sharma Vs. District Judge, Bulandshahr
and another, the Supreme Court referring
to the facts of that case held that the 2%
quota fixed for physically handicapped
persons if applied to 30 posts, the figure
would come to 0.6 and since 0.6 is more
than half, it should be rounded off to 1.
Para 2 and 3 of the said judgment read as
follows: 3

" 2. The appellant is a blind man. He
appeared in the recruitment test held in
the year 1992 for selecting candidates for
Class-III Posts in Bulandshahr Judgeship
in U.P. However, he was not selected and
hence he filed a writ petition which was
allowed by a learned Single Judge of the
Allahabad High Court by his judgment
dated 25.09.1997. Against that judgment
the State Government filed a letters patent
appeal which has been allowed by the
impugned judgment by the Division
Bench. Hence this appeal.

3. The appellant has relied on G.O.
dated 26.08.1993 which is Annexure P-I
to this appeal. That G.O. states that the
U.P. Government has reserved 2 per cent
posts for physically handicapped persons
for direct recruitment in all groups of
Government services. The physically
handicapped persons are those who are
blind, deaf and dumb and otherwise
handicapped. There were altogether 30
posts for which the selection was held. 2
per cent of 30 is 0.6. Since 0.6 is more
than half we round it off and hold that one
out of the 30 posts is reserved for
physically handicapped persons. Since
there
was
no
other
physically
handicapped person who applied, in our
opinion, the appellant was entitled to the
post reserved for physically handicapped
persons."

19. A Division Bench of this Court
in the case of Dr. Rajesh Kumar Tiwari
Vs. State of U.P and others, 2007 (1)
AWC 282, while dealing with the
question of rounding off with regard to
the quota fixed for dependents of freedom
fighters has held as follows:

"13. In the present case, it is admitted
fact that 82 vacancies were advertised and
the quota fixed for the dependents of
freedom fighters is 2%. Thus, 2% of 82
being more than 1.5 would result in to 2
posts in that quota. The law with regard to
3 All] Anoop Mishra Vs. The State of U.P. & Anr.
1657
rounding off is very clear and well settled.
Where the value is one-half or more, it has to
be rounded off to the next whole number and
where it is less than one-half, it has to be
ignored. In the present case, 2% of 81 comes
to 1.62. It being more than one-half , the
value to be taken is 2. This view is supported
by the decision of the Hon'ble Apex Court in
the case of State of U.P. and Anr. v. Pawan
Kumar Tiwari and Ors."

20. The state-respondents in their
counter affidavit have stated that the
reservation has to be applied on the basis
of roster in the form of a running account
from year to year and the post, which falls
against a particular roster has to be filled
from the category to which that post
belongs in the roster. The plea taken by
the State Government is in the abstract as
no figures have been given to show as to
whether the roster is complete or not.
From the facts of the case what emerges is
that the reservation is being applied to the
vacancies and not to the entire cadre
strength. Moreover, the stand taken by the
respondents is in respect of vertical
reservation in favour of Scheduled Castes,
Scheduled Tribes and Other Backward
Classes as provided in Section 3 of the
Uttar
Pradesh
Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act 1994, Act 4 of 1994. Sub
Section (5) of Section 3 of the Act 4 of
1994
provides
for
application
of
reservation on the basis of roster
comprising total cadre strength of the
public services and posts and the roster so
issued is to be implemented in the form of
a running account from year to year until
the reservation for various categories of
persons mentioned in sub-section 1,
namely,
persons
belonging
to
the
Scheduled Castes, Scheduled Tribes and
Other Backward Classes categories, is
achieved and the operation of the roster
and the running account shall thereafter
come to an end and any vacancy
occurring thereafter shall be filled from
amongst
persons
belonging
to
the
category to which the post belongs in the
roster sub-section 5 of section 3 of the
Act, 1994 reads as follows:

"3.
Reservation
in
favour
of
Scheduled Castes, Scheduled Tribes and
Other Backward Classes.- [(1) In public
services and posts, there shall be reserved
at the stage of direct recruitment, the
following percentage of vacancies to
which recruitments are to be made in
accordance with the roster referred to in
sub-section (5) in favour of the persons
belonging to Scheduled Castes, Scheduled
Tribes and other Backward Classes of
citizens,-

(a) in the case of Scheduled Castes
Twenty one per cent;

(b) in the case of Scheduled Tribe
Two per cent;

(c) in case of Other Backward
Classes of citizensTwenty-seven per cent:

20. So far as the category of persons
belonging to the category of physically
handicapped
dependents
of
freedom
fighters, Ex-Servicemen are concerned,
the Act No. 4 of 1993 makes it clear that
the reservation of these categories, which
are
otherwise
known
as
horizontal
reservation is to be applied to the
vacancies and not on the basis of cadre
strength as horizontal reservation is
applicable across all the categories
including general candidates. So far as
dependents of freedom fighters are
concerned, Section 3(1) (i) reads as
follows:
1658 INDIAN LAW REPORTS ALLAHABAD SERIES

"3 (1) (i) in public services and posts
two percent of vacancies for dependents
of freedom fighters;"

21. This question came up before the
Lucknow Bench of this Court for
consideration in Writ Petition (S.B.) NO.
1049 of 2010, Atul Awasthi Vs. U.P
Cooperative Institutional Service Board,
Lucknow through its Chairman and
another and the Division Bench of this
Court in paras 5, 6 and 7 held as follows:

" 5. Learned counsel for the
respondents has argued that the quota
provided to dependents of freedom
fighter, exserviceman and physically
handicapped as per rules, is a horizontal
reservation and it has to be worked out on
the basis of the vacancies advertized and
not on the basis of the total cadre strength.
It is further submitted that representation
of the petitioner was rightly rejected.

6. Now the short question to be
determined in this writ petition is whether
2% quota of freedom fighter has to be
calculated on the basis of the total cadre
strength or on the basis of the actual
vacancies.

7. The Uttar Pradesh Public Services
(Reservation for Physically Handicapped,
Dependents of Freedom Fighters and Exservicemen) Act, 1993 (in short referred
to as U.P. Act No.

4 of 1993) was promulgated and
came in to force with effect from
30.12.1993. According to Section 3 of the
U.P. Act No. 4 of 1993, it was provided
that there shall be reserved 5% of
vacancies
at
the
stage
of
direct
recruitment in favour of the physically
handicapped, dependents of freedom
fighters and ex-servicemen. Subsection
(2) of Section 3 of U.P. Act No. 4 of 1993
provided that the respective quota of the
categories shall be such as the State
Government may from time to time
determine by a notified order. Further,
sub-section (3) of Section 3 of U.P. Act
No. 4 of 1993 provided the manner in
which the reservation was to be applied.
For sake of convenience, Section 3 of
U.P. Act No. 4 of 1993 is quoted
hereunder:

3. Reservation of vacancies in favour
of physically handicapped etc.--(1) in
public services and posts in connection
with the affairs of the State there shall be
reserved five per cent of vacancies at the
stage of direct recruitment in favour of:

(i) physically handicapped

(ii) dependents of freedom fighters,
and

(iii) ex-servicemen

(2) The respective quota of the
categories specified in subsection (1) shall
be such as the State Government may
from time to time determine by a notified
order.

(3) The persons selected against the
vacancies 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 adjustments;
if he belongs to Backward Classes
category, he will be placed in that quota
by
making
necessary
adjustments.
Similarly
if
he
belongs
to
open
competition category, he will be placed in
3 All] Anoop Mishra Vs. The State of U.P. & Anr.
1659
that category by
making necessary
adjustments.

(4) For the purpose of subsection (1)
an year of recruitment shall be taken as
the unit and not the entire strength of the
cadre or service, as the case may be:

Provided that at no point of time the
reservation shall, in the entire strength of
cadre, or service, as the case may be,
exceed
the
quota
determined
for
respective categories.

(5) The vacancies reserved under
sub-section (1) shall not be carried over to
the next year of recruitment."

22. Applying the ratio of the case
law referred to hereinabove, to the facts of
the present case, we are satisfied that the
respondents
had
clearly
erred
in
calculating the vacancies for the category
of dependents of freedom fighters. It has
not been disputed by the respondents that
against 134 posts, 2% reservation for
dependants of freedom fighters would
come to 2.68. That being the factual
position, we are satisfied that in view of
the law settled by the Supreme Court as
well as this Court the principle of
rounding off ought to have been applied
against horizontal reservation and if so
applied the posts falling in the category of
dependents of freedom fighters would be
3 and not 2.

23. Besides the averments in para 11
of the writ petition that the petitioner had
secured 1058.42 marks, whereas, the cut
off marks or minimum obtained by the
last candidate for dependents of freedom
fighters was 1059.24, has not been denied
by the respondents in their counter
affidavit. All that has been submitted by
learned Standing Counsel, during the
course of argument is that 1059.24 was
not the cut off marks fixed for dependents
of freedom fighters.

24. From a perusal of the documents
on record, it may be concluded that this
may be at the most be a typographical
error on the part of the petitioner, but the
result of the examination in question,
which has been filed as Annexure-7 to the
writ petition at page 53, clearly shows that
the minimum marks obtained by the
candidate belonging to the dependent of
freedom fighter category was in fact
1059.24.

25. Sri A.K. Sinha, learned counsel
for the Commission has placed reliance
upon the decision of the Supreme Court
reported in (2012) 8 SCC 568 (Registrar,
Rajiv Gandhi University of Health
Sciences, Bangalore Vs. G. Hemlatha and
others, wherein, referring to the minimum
marks prescribed for Post Graduate
Course, which was 55%, the petitioner
who had obtained 54.71% aggregate in
the Bachelor of Science was held
ineligible for the said post. The Supreme
Court in the said case has upheld the
contention of the appellant-University and
held that .71% could not be rounded off
and 54.71 could not be read as 55% in
order to make the petitioner eligible to
take the examination for the P.G. Course
in M.Sc. (Nursing). In the said judgment
the Supreme Court has referred to its
earlier judgment reported in (2011) 8 SCC
108, Orissa Public Service Commission
and another Vs. Rupashree Chowdhary
and
another.
In
the
judgment
of
Rupashree
Chowdhary
(supra),
the
Supreme Court has declined to round off
.1 as 1. Reliance in that case was placed
upon the decisions of the Supreme Court
1660 INDIAN LAW REPORTS ALLAHABAD SERIES
in the case of Pawan Kumar Tiwari
(supra), Bhudev Sharma (supra) and
similar other judgments. The Supreme
Court rejected the contention of the
respondents
therein
(Rupashree
Chowdhary) and while distinguishing the
facts of the case in hand from that of Pawan
Kumar Tiwari and Bhudev Sharma and
others judgments, held that those cases dealt
with posts or vacancies where, it was
allowed to be rounded off to make 1 whole
post but the same principle would not apply
in the case of the minimum eligibility
criteria/ marks prescribed for a particular
course. Para 7 of the Rupashree Chowdhary
(supra) judgment reads as follows:

"7. The learned counsel appearing for
the respondents during the course of his
arguments relied upon the decisions of this
Court in State of Orissa Vs. Damodar Nayak,
State of U.P. v. Pawan Kumar Tiwari, Union
of India V. S. Vinodh Kumar and Bhudev
Sharma V. District Judge, Bulandshahr. On
scrutiny, we find that the findings recorded in
the abovereferred cases are not applicable to
the facts of the present case. The facts and
findings recorded by this Court in the
abovereferred cases are distinguishable to the
facts of the case in hand. Almost all the
aforesaid cases dealt with post or vacancies
where it was allowed to be rounded off to
make one whole post. Understandably there
cannot be a fraction of a post."

26.

Thus,
in
view
of
the
observations made by the Supreme Court
in the case of Rupashree Chowdhary
(supra) the
case
of Rajiv
Gandhi
University (supra) has no application to
the facts of the present case.

27. At this stage Sri Keshari Nath
Tripathi,
learned
Senior
Counsel
submitted that out of 134 vacancies, only
121 candidates actually joined and
therefore there would have been no
difficulty
for
the
respondents
in
calculating the posts in the category of
dependents
of
freedom
fighters
by
applying the principle of rounding off and
thereafter making one post available for
the petitioner.

28. The fact that out of 134 posts of
Assistant Commissioner (Trade Tax) only
121 persons joined has not been denied by
the learned Standing Counsel, who has
very fairly placed before this Court the
order dated 11.7.2013, passed by the Joint
Commissioner (Trade Tax) Headquarters,
Lucknow, which shows that in the 2009
Batch Examination, out of 134 posts,
advertised, only 121 candidates had
actually joined.

29. Thus, on a conspectus of the facts
and the law laid down by the Supreme Court
as well as this Court, we are of the firm
opinion that the reservation prescribed for the
category of dependents of freedom fighters
as provided in the Act 4 of 1993 has not been
applied in its true letter and spirit by the
respondents and, therefore, the writ petition
deserves to be allowed.

30. The writ petition is, accordingly,
allowed.