# Om Veer Singh v. State of U.P. and others

- **Citation:** (2006) 3 ILRA 1217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-09-20
- **Case number:** Civil Misc. Writ Petition No. 25601 of 2003
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-veer-singh-v-state-of-u-p-and-others-40678
- **Pages:** 6

## Headnote

Constitution
of
India
Art.
14,
16
readwith
U.P.
Public
Service
(Reservation for S.C./S.T. and Other
Backward
Classes)
Amendment
Act,
2002-Section 3 (1)-Reservation Quotaout of 13 sanctioned post of class 4th
employee-6 persons already working-3
as Backward candidate and 3 from
S.C./S.T. candidates-while under SC/ST
Quota
only
2
persons
could
be
appointed-even
then
the
impugned
direction of D.I.O.S. to fill up the fresh 2
vacancies
from
reserved
categoryexceed 50%- held illegal-consequential
direction issued.

Held: Para 8

Coming to the facts of the case in hand,
it is apparent that out of the total
sanctioned strength of 13 in class IV
cadre, 6 are already occupied by OBCs
though as per 27% reservation, only 3
vacancies could have been filled from the
OBC. Similarly 3 posts are occupied by
the candidates belonging to scheduled
castes, though their reservation, being
21%, only 2 appointments could have
been
made
from
scheduled
caste
candidates.
Thus
the
cadre
already
having candidates belonging to reserve
category beyond the prescribed quota, it
cannot be said that the two vacancies
available could be filled in by applying
reservation.
Case law discussed:
AIR 1993 SC-477
1992 (Supp.) 3 SCC-217
AIR 1995 SC-1371
1995 (2) SCC-745
1995 (6) SCC-684
1999 (7) SCC-209
1996 (2) SCC-715

civil Appeal No.2903 of 2001 decided on
27.7.06

## Text

1216 INDIAN LAW REPORT ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 25601 of 2003

Om Veer Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri J.J. Munir

Counsel for the Respondents:
Sri Anil Bhushan
S.C.

Constitution
of
India
Art.
14,
16
readwith
U.P.
Public
Service
(Reservation for S.C./S.T. and Other
Backward
Classes)
Amendment
Act,
2002-Section 3 (1)-Reservation Quotaout of 13 sanctioned post of class 4th
employee-6 persons already working-3
as Backward candidate and 3 from
S.C./S.T. candidates-while under SC/ST
Quota
only
2
persons
could
be
appointed-even
then
the
impugned
direction of D.I.O.S. to fill up the fresh 2
vacancies
from
reserved
categoryexceed 50%- held illegal-consequential
direction issued.

Held: Para 8

Coming to the facts of the case in hand,
it is apparent that out of the total
sanctioned strength of 13 in class IV
cadre, 6 are already occupied by OBCs
though as per 27% reservation, only 3
vacancies could have been filled from the
OBC. Similarly 3 posts are occupied by
the candidates belonging to scheduled
castes, though their reservation, being
21%, only 2 appointments could have
been
made
from
scheduled
caste
candidates.
Thus
the
cadre
already
having candidates belonging to reserve
category beyond the prescribed quota, it
cannot be said that the two vacancies
available could be filled in by applying
reservation.
Case law discussed:
AIR 1993 SC-477
1992 (Supp.) 3 SCC-217
AIR 1995 SC-1371
1995 (2) SCC-745
1995 (6) SCC-684
1999 (7) SCC-209
1996 (2) SCC-715

civil Appeal No.2903 of 2001 decided on
27.7.06

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri J.J. Munir, learned
counsel for the petitioner, Sri Anil
Bhushan,
the
learned
counsel
for
respondent Nos. 3 and 4 and the learned
Standing
Counsel
appearing
for
respondent Nos. 1 and 2.

2. A counter affidavit has been filed
on behalf of respondent nos. 3 and 4 but
no reply has been filed on behalf of
respondent nos. 1 and 2 despite repeated
opportunity is granted. Even a stop order
was passed on 6.10.2004 permitting six
weeks and no more time to respondent
nos. 1 and 2 to file counter affidavit. Still
the same has not been filed. This Court
also granted indulgence on 30.8.2006 to
the learned standing counsel to seek
instructions
but
today,
the
learned
standing
counsel
representing
the
respondent nos. 1 and 2 has stated at the
bar that despite information, he has not
received any instruction. The learned
counsel for the parties however agreed
that the writ petition may be heard and
decided finally on the basis of the
material available on record. In the
circumstances, with the consent of the
3All] Om Veer Singh V. State of U.P. and others 1217
learned counsel for the parties, I have
proceeded to hear this matter finally to
decide under the Rules of the Court at this
stage.

3. The petitioner has filed this writ
petition
under
Article
226
of
the
Constitution of India challenging the
order dated 6.3.2003 passed by the
District Inspector of School, Aligarh
permitting the Principal, Adarsh Lag
Sama Inter College, Canthal, Aligarh to
fill up two vacancies of Class IV
employees
only
from
Backward
candidates by direct recruitment. He has
also
challenged
consequential
advertisement published on 12.5.2003
advertising the said two vacancies to be
filled in from OBC category candidates.

4. In brief, the case of the petitioner
is that there are 13 sanctioned posts of
Class IV in the institution in question, out
of which six employees belong to OBC
category, three belong to Scheduled Caste
and two are General already working.
Therefore, advertising two vacancies of
Class IV to be filled in only from the
reserved quota of OBC candidate is
violative of the Act as also Articles 14, 16
and 21 of the Constitution and also
contrary to law laid down by the Hon'ble
Apex Court in Indra Sawney Vs. Union
of India and others-AIR 1993 SC
477=1992 Supple. (3) SCC 217.

5. Since the total sanctioned strength
in the institution in respect to class IV
cadre is 13 only out of which 9 are
occupied
by
the
reserved
category
candidates, therefore, it cannot be said
that any vacancy in reserved quota is still
available and could have been filled by
reserved category candidates.

Reservation of scheduled castes,
scheduled tribes and other backward
classes, admittedly, is governed by U.P.
Public
Services
(Reservation
for
Scheduled Castes, Schedules Tribes and
Other Backward Classes) Act, 1994
(hereinafter referred to as the ''Act' in
short). The aforesaid Act was amended by
U.P. Public Services (Reservation for
Scheduled Castes, Schedules Tribes and
Other Backward Classes) (Amendment)
Act, 2002. Section 3 has been amended
by the aforesaid Act and as provided
under
Section
1(2),
the
aforesaid
amendment has been given effect with
effect from 15.9.2001. It provides as
under:

3. Amendment of Section 3. In
Section 3 of the principal Act,-

(a) for sub-sections (1), (2) and (3) the
following sub-section shall be substituted,
namely :-

"(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 Schedules Castes, Schedules
Tribes and Other Backward Classes of
citizens,-

(a) in the case of Scheduled Casts
-Twenty-one per cent;
(b) in the case of Scheduled Tribes
-Two per cent;
(c) in the case of other Backward Classes
of citizens
-Twenty-seven per cent;
1218 INDIAN LAW REPORT ALLAHABAD SERIES [2006
Provided that the reservation under
clause (c) shall not apply to the category
of Other Backward Classes of citizens
specified in Schedule II :
Provided further that reservation of
vacancies for all categories of persons
shall
not
exceed
in
any
year
of
recruitment fifty per cent of the total
vacancies of that year as also fifty per
cent of the cadre strength of the service to
which the recruitment is to be made :

(2) If, in respect of any year of
recruitment any vacancy reserved for any
category of persons under sub-section (1)
remains unfilled, such vacancy shall be
carried forward and be filled through
special recruitment in that very year or in
succeeding year or years of recruitment
as a separate class of vacancy and such
class of vacancy shall not be considered
together with the vacancies of the year of
recruitment in which it is filled and also
for the purpose of determining the ceiling
of fifty per cent reservation of the total
vacancies of that year notwithstanding
anything to the contrary contained in subsection (1);
(3) Where a vacancy reserved for the
Scheduled Tribes remains unfilled even
after three special recruitments made
under sub-section (2), such vacancy may
be filled from amongst the persons
belonging to scheduled castes";

6. A perusal of the second proviso of
Section 3(1) makes it clear that in any
year of recruitment, reservation shall not
exceed either 50% of the total vacancies
in that year of recruitment or even 50% of
the cadre strength of the service to which
the recruitment is to be made. It clearly
means that in a particular year of
recruitment, the number of vacancies
advertised shall not be reserved more than
50%. However, if 50% reservation of the
vacancies in that particular year may
result in making recruitment of reserved
category candidates to the extent of more
than 50% of the cadre strength of the
service, in such case the reservation of the
vacancies shall be reduced so as not to
allow it to exceed 50% of the cadre
strength of the service. It may be
demonstrated as hereinafter. If in a cadre,
the sanctioned strength is 100 and 10
vacancies occurred, not more than 5 shall
be reserved under 1994 Act. However, if
out of 100 sanctioned strength, more than
45 persons working belong to reserved
category, e.g., if 48 candidates belong to
reserved
category,
in
that
event
reservation of 5 vacancies out of 10
would result in exceeding 50% of
reserved category candidates qua cadre
strength and, therefore, though against the
total 10 vacancies, 50% could have been
reserved, but considering the cadre
strength position, only two shall be
reserved and rest shall be filled in from
general candidates. A plain reading of
Section 3(1) second proviso of the Act of
1994 as amended in 2002 makes it clear
and I do not find any ambiguity in the
language of the provision. This provision,
in fact, appears to have been enacted by
the legislature to give effect to the view
expressed by the Apex Court in Indra
Sawhney (Supra) and R.K.Sabharwal
Vs. State of Punjab, AIR 1995 SC
1371= (1995) 2 SCC 745, Union of India
& others Vs. Virpal Singh Chauhan &
others, (1995) 6 SCC 684, Ajit Singh &
others (II) Vs. State of Punjab & others
(1999) 7 SCC 209 and Ajit Singh
Januja & others Vs. State of Punjab &
others, (1996) 2 SCC 715.
3All] Om Veer Singh V. State of U.P. and others 1219
In Indra Sawhney, the Apex Court
observed (SCC Page-737, Para 814) as
under:

"Take
a
unit/service/cadre
comprising 1000 posts. The reservation in
favour of Scheduled Tribes, Scheduled
Castes and Other Backward Classes is
50% which means that out of the 1000
posts 500 must be held by the members of
these classes, i.e, 270 by Other Backward
Classes, 150 by Scheduled Castes and 80
by Schedules Tribes. At a given point of
time, let us say, the number of members of
OBCs in the unit/service/category is only
50, a shortfall of 220. Similarly the
number of members of Scheduled Castes
and Scheduled Tribes is only 20 and 5
respectively, shortfall of 130 and 75. If
the entire service/cadre is taken as a unit
and the backlog is sought to be made up,
then the open competition channel has to
be choked altogether for a number of
years until the number of members of all
Backward Classes reaches 500, i.e., till
the quota meant for each of them is filled
up. This may take quite a number of years
because the number of vacancies arising
each year are not many. Meanwhile, the
members of open competition category
would become age-barred and ineligible,
Equality of opportunity in their case
would become a mere mirage. It must be
remembered
that
the
equality
of
opportunity guaranteed by clause (1) is to
each individual citizen of the country
while clause (4) contemplates special
provision being made in favour of socially
disadvantaged classes. Both must be
balanced against each other. Neither
should be allowed to eclipse the other.
For the above reason, we hold that for the
purpose of applying the rule of 50% a
year should be taken as the unit and not
the entire strength of cadre, service of the
unit, as the case may be."
(para 96 in AIR)

7. In Ajit Singh Januja (Supra),
after referring to Indra Sawhney and
R.K. Sabharwal, the Apex Court clearly
observed than in any cadre, reservation
should not exceed beyond 50 percent. It
has also been provided where 50%
reserved category candidates have already
been recruited, the reservation roster shall
stand suspended till a vacancy occur in
the cadre itself, which may be filled in
from
reserved
category
candidates
without exceeding 50% limit in the cadre
as well as of the vacancies in a
recruitment year. Recently, in R.S. Garg
Vs. State of U.P. & others, Civil Appeal
No. 2903 of 2001 decided on 27.07.2006,
the
Apex
Court,
while
considering
Section 3 of the Act as well as the
provision pertaining to reservation under
the Constitution, observed that the cadre
consisted of only 6 posts and applying
reservation for Other Backward Classes in
accordance with the Act and as per roster,
two posts would have been available for
Schedules Castes candidates meaning
thereby 1/3 of the cadre would have to
filled in by Scheduled Castes candidates.
Negativing it, the Court observed that
Article 15(4) and 16(4) profess to bring
socially
and
educationally
backward
people to the forefront. The Constitution
makers
thought
of
protective
discrimination and affirmative action only
for the purpose of invoking equality
clause. Such recourse to protective
discrimination and affirmation action had
been thought of to do away with social
disparities.
Therefore,
policy
of
reservation once applied is imperative in
public employment and where even by
application of roaster, the result goes
1220 INDIAN LAW REPORT ALLAHABAD SERIES [2006
beyond 21 per cent, the same cannot be
allowed to operate, since it would be
unconstitutional. The Apex Court in Para
28 of the judgment of R.S. Garg (Supra)
concluded as under:

"21% of the posts have been reserved
for Scheduled Tribe candidates by the
State itself. It, thus, cannot exceed the
quota. It is not disputed that in the event
of any conflict between the percentage of
reservation and the roaster, the former
shall prevail. Thus, in the peculiar facts
and circumstances of this case, the roster
to fill up the posts by reserved category
candidates, after every four posts, in our
considered opinion, does not meet the
constitutional requirements."

8. Coming to the facts of the case in
hand, it is apparent that out of the total
sanctioned strength of 13 in class IV
cadre, 6 are already occupied by OBCs
though as per 27% reservation, only 3
vacancies could have been filled from the
OBC. Similarly 3 posts are occupied by
the candidates belonging to scheduled
castes, though their reservation, being
21%, only 2 appointments could have
been
made
from
scheduled
caste
candidates. Thus the cadre already having
candidates belonging to reserve category
beyond the prescribed quota, it cannot be
said that the two vacancies available
could be filled in by applying reservation.

9. The aforesaid observations may
not be taken to attach invalidity to the
appointments already made, since they are
neither disputed in this writ petition nor
the persons likely to be affected are party
to this case and, therefore, I am not
invalidating the appointments already
made. It is sufficient for the purpose of
this writ petition to notice that out of 13
posts in the cadre sufficient number
thereof are already filled in by reserved
category candidates and, therefore, two
vacancies sought to be filled in by means
of the impugned order/advertisement
cannot be permitted to be filled in only
from the reserved category candidates.
Recruitment has to be made in the
aforesaid vacancies from the general
category candidates. Therefore, in my
considered view, the order of the District
Inspector of Schools, impugned in the
writ petition cannot be sustained and is
liable to be set aside being in violation of
Article 14 and 16 (1) of the Constitution
of India read with Section 3(1) second
proviso of the Act of 1994 as amended by
U.P. Public Services (Reservation for
Scheduled Castes, Schedules Tribes and
Other Backward Classes) (Amendment)
Act,
2002.
Consequently,
the
advertisement, impugned in the writ
petition published by the institution
pursuant to the order of District Inspector
of Schools also cannot be sustained and is
liable to be set aside.

10. In the result, the writ petition
succeeds and is allowed. The impugned
order dated 6.3.2003 (Annexure-2 to the
writ petition) and the order dated
12.5.2003
(Annexure-3
to
the
writ
petition)
are
hereby
quashed.
The
respondents
are
directed
to
make
recruitment in the aforesaid vacancies
from general category candidates in
accordance with law. This exercise shall
be completed within four months from the
date of production of a certified copy of
this
order
before
the
respondentauthorities. There is no order as to costs.

Petition Allowed.
---------
3All] Smt. Mansa Singh V. Union of India and others 1221
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2006.

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE R.K. RASTOGI,J.

Civil Misc. Writ Petition No. 57396 of 2006

Smt. Mansa Singh

...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Vikas Budhwar
Sri Ramesh Chandra Tiwari

Counsel for the Respondent:
Sri Tarun Varma
Addl. Solicitor General of India.

Constitution of India, Art 226-Rejection
of Application-on pretext of medical
certificate-petitioner
had
already
mentioned in column 4 of application
about the medical certificate-despite of
receiving the application no objection
raised for considerable period-No reason
disclosed for withholding the certificate
by
the
petition-great
possibility
of
misplacement due to negligence of the
official-No bar regarding acceptance of
such document in subsequent stage-held
rejection not proper.

Held para 7 and 10

There was no question of not filing this
certificate-dated 22.7.2006 when it was
with the applicant on 28.7.2006 and she
had mentioned in the column no. 8 that
she was enclosing it. There is no
assertion
from
the
side
of
the
respondents that the photocopy of the
form filed by the petitioner (Annexure-2)
is not a true copy of the application
submitted to the respondents. Under this
circumstance there is no reason to
disbelieve the assertion made in column
no. 8 of the application that the medical
certificate was enclosed with the form,
and as such when the Corporation did
not raise any objection at the earliest on
receipt of the form on 28.7.2006 that it
did not contain the medical certificate,
the
subsequent
assertion
made
on
11.9.2006 that it was not received along
with the form cannot be believed and it
appears that medical certificate had
been misplaced or lost in the office of the
respondents.

We
are
therefore
permitting
the
petitioner to file a copy of the medical
certificate because when a document has
been lost in the office of the respondent,
there is no legal bar to file its copy at the
subsequent stage.

(Delivered by Hon'ble A.K. Yog, J.)

1. Heard leaned counsel for the
petitioner
and
the
learned
standing
counsel representing I.O.C.(Indian Oil
Corporation).

2. Petitioner has come up before this
Court being aggrieved by the impugned
order dated 11.9.2006/Annexure-9 to the
writ petition passed by the respondents
no. 2 and 3, whereby, Indian Oil
Corporation intimated the petitioner that
her application has been rejected on the
ground that medical certificate was not
enclosed therein.

3. According to the petitioner she
had
submitted
her
application-dated
28.7.2006 in order (including medical
certificate). Referring to the photocopy of
the application, it is pointed out that in
relevant column no. 8 requiring medical
certificate it was stated that the certificate
was enclosed and the petitioner had
replied in affirmative that she was
physically and mentally fit. Petitioner
submits that she had obtained medical
certificate dated 22nd July 2006 after her