# Prof. Amar Nath v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 309
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-24
- **Case number:** Writ-A No. 5750 of 2023
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-amar-nath-v-state-of-u-p-ors-50426
- **Pages:** 10

## Headnote

Law
-
Recruitment
-
Reservation
-
U.P.
Public
Services
(Reservation for SC, ST and OBC) Act,
1994 - Section 3(5) - The roster shall be
applicable strictly in consonance with the
reservation and if the same has to be
properly given credence to the yearwise
vacancy arising out of vacant posts
created after retirement or vacated on any
reason, the same has to be strictly filled
up with the reservation available for each
and every category. (Para 7)

The posts which are meant for the reserved
category, would be offered only to the reserved
category so long as the reserved roster point
are not occupied by reserved category. In case
2 posts are reserved out of total cadre strength
of the Principal, Government Ayurvedic Medical
College which is 8 in number then in that case,
the reservation shall be available for reserved
category i.e. specifically for the Scheduled Caste
to the tune of 21% shall exceed to 25%,
moreover, the roster which is 100 point roster
and the bifurcation of the posts available for the
reserved category as well as for the unreserved
category shall be applicable for the 8 posts
(total cadre strength) has to be recalculated in
terms of 100 point roster, and as such, the
entire exercise as initiated by the U.P. Public
310 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Commission in consultation with the
State Government does not reflect that the
maximum capping limit of 21% for the post
which is reserved for the Scheduled Caste, has
ever been disturbed. (Para 15)

B. The preliminary ground for challenging
the impugned order is the action of the
respondents notifying the 4 posts for the
post of Principal, Government Ayurvedic
Medical College exclusively for unreserved
category
shall
exceed
the
maximum
capping of 50% of reservation in favour of
the unreserved category and the same is
contrary to the guiding principles laid
down in the case of Indra Sawhney Vs
Union of India (AIR 1993 SC 477). (Para
18)

The reservation applicable for reserved
category especially for the Scheduled Caste
is 21% which comes down in fraction to
1.68 and as such, 1 post out of 8 has to be
kept
reserved
for
reserved
category
candidate belongs to the Scheduled Caste
and as per the factual narration, one Sri
Suresh Chandra is already rendering his
services as Principal, Government Ayurvedic
Medical College and as such, there is a
strict
compliance
of
the
reservation
mandated under 21%. (Para 19)

So far as the application of roster is concerned,
the same is also applied by way of decategorization of the posts in reserved category,
unreserved
category
and
other
backward
classes. It is the admitted fact that one post has
been already occupied by reserved category
under Scheduled Caste and two posts under the
Other Backward Classes are also occupied and
as such, the notification issued for the four
posts for unreserved category, cannot be
termed as illegal. (Para 20)

C. Words and Phrases - 'posts', 'vacancies'
- The expressions `posts' and `vacancies', often
used in the executive instructions providing for
reservations, are rather problematical. The
word `post' means an appointment, job,
office or employment. A position to which
a person is appointed. 'Vacancy' means an
unoccupied post or office.

The plain meaning of the two expressions
make it clear that there must be a `post'
in existence to enable the `vacancy' to
occur.
The
cadre-strength
is
always
measured
by
the
number
of
posts
comprising the cadre. Right to be considered
for appointment can only be claimed in respect
of a post in a cadre. As a consequence the
percentage of reservation has to be
worked out in relation to the number of
posts which form the cadre-strength. The
concept of `vacancy' has no relevance in
operating the percentage of reservation.
(Para 6)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

7 All. Prof. Amar Nath Vs. State of U.P. & Ors.
309
petitioner along with six other persons, four
persons named above were given joining in
Medical College, Azamgarh. Later on, their
appointment has been cancelled vide order
dated 22.05.2009. Subsequently, as a result
of order of this Court in several writ
petitions, the order dated 22.05.2009 was
recalled by the respondents and the
aforementioned
four
persons
were
permitted to re-join their respective post.
However, the petitioner, whose name finds
place at serial No.4 in the aforesaid list, has
not been permitted to join on the ground of
technicalities. This fact itself has been
admitted in the counter affidavit that four
persons were initially permitted to join on
the instructions of higher authorities.
Therefore, such kind of discrimination
cannot be permitted to go on.

14. If the aforementioned four persons
were the part of same selection under same
advertisement and were permitted to join
the post under same appointment letter,
there is no occasion to not permit the
petitioner to join his respective post.

15. In view of reasons recorded
above, the writ petition deserved to be
allowed and is hereby allowed.

16. A writ in the nature of mandamus
is issued commanding the respondent No.2
to look into the matter and if case of the
petitioner
is
akin
to
aforementioned
persons,
namely,
Santosh
Kumar
Upadhyaya, Neeraj Gupta, Sandeep Kumar
Singh and Sushri Seema Verma, he shall
also be given joining within a period of
four weeks from the date of production of a
certified copy of this order.

17. No order as to costs.
----------
(2023) 7 ILRA 309
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 5750 of 2023

Prof. Amar Nath ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Mamta, Ms. Jigyasa Singh

Counsel for the Respondents:
C.S.C., Sri M.N. Singh, Sri Fuzail Ahmad
Ansari

A.
Service
Law
-
Recruitment
-
Reservation
-
U.P.
Public
Services
(Reservation for SC, ST and OBC) Act,
1994 - Section 3(5) - The roster shall be
applicable strictly in consonance with the
reservation and if the same has to be
properly given credence to the yearwise
vacancy arising out of vacant posts
created after retirement or vacated on any
reason, the same has to be strictly filled
up with the reservation available for each
and every category. (Para 7)

The posts which are meant for the reserved
category, would be offered only to the reserved
category so long as the reserved roster point
are not occupied by reserved category. In case
2 posts are reserved out of total cadre strength
of the Principal, Government Ayurvedic Medical
College which is 8 in number then in that case,
the reservation shall be available for reserved
category i.e. specifically for the Scheduled Caste
to the tune of 21% shall exceed to 25%,
moreover, the roster which is 100 point roster
and the bifurcation of the posts available for the
reserved category as well as for the unreserved
category shall be applicable for the 8 posts
(total cadre strength) has to be recalculated in
terms of 100 point roster, and as such, the
entire exercise as initiated by the U.P. Public
310 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Commission in consultation with the
State Government does not reflect that the
maximum capping limit of 21% for the post
which is reserved for the Scheduled Caste, has
ever been disturbed. (Para 15)

B. The preliminary ground for challenging
the impugned order is the action of the
respondents notifying the 4 posts for the
post of Principal, Government Ayurvedic
Medical College exclusively for unreserved
category
shall
exceed
the
maximum
capping of 50% of reservation in favour of
the unreserved category and the same is
contrary to the guiding principles laid
down in the case of Indra Sawhney Vs
Union of India (AIR 1993 SC 477). (Para
18)

The reservation applicable for reserved
category especially for the Scheduled Caste
is 21% which comes down in fraction to
1.68 and as such, 1 post out of 8 has to be
kept
reserved
for
reserved
category
candidate belongs to the Scheduled Caste
and as per the factual narration, one Sri
Suresh Chandra is already rendering his
services as Principal, Government Ayurvedic
Medical College and as such, there is a
strict
compliance
of
the
reservation
mandated under 21%. (Para 19)

So far as the application of roster is concerned,
the same is also applied by way of decategorization of the posts in reserved category,
unreserved
category
and
other
backward
classes. It is the admitted fact that one post has
been already occupied by reserved category
under Scheduled Caste and two posts under the
Other Backward Classes are also occupied and
as such, the notification issued for the four
posts for unreserved category, cannot be
termed as illegal. (Para 20)

C. Words and Phrases - 'posts', 'vacancies'
- The expressions `posts' and `vacancies', often
used in the executive instructions providing for
reservations, are rather problematical. The
word `post' means an appointment, job,
office or employment. A position to which
a person is appointed. 'Vacancy' means an
unoccupied post or office.

The plain meaning of the two expressions
make it clear that there must be a `post'
in existence to enable the `vacancy' to
occur.
The
cadre-strength
is
always
measured
by
the
number
of
posts
comprising the cadre. Right to be considered
for appointment can only be claimed in respect
of a post in a cadre. As a consequence the
percentage of reservation has to be
worked out in relation to the number of
posts which form the cadre-strength. The
concept of `vacancy' has no relevance in
operating the percentage of reservation.
(Para 6)

Writ petition dismissed. (E-4)

Precedent followed:

1. St. of U.P. & ors. Vs Sangam Nath Pandey &
ors.
connected
with
U.P.
Public
Service
Commission Vs Manoj Kumar Singh & ors., 2012
(2) SCC 105 (Para 6)

2. M.R. Balaji Vs The St. of Mysore, 1963 AIR
(SC) 649 (Para 13)

3. R.K. Sabharwal & ors. Vs St. of Punj. & ors.,
1995 (2) SCC 745 (Para 15)

4. Indra Sawhney Vs U.O.I., AIR 1993 SC 477
(Para 18)

Present
petition
challenges
Rolling
Advertisement No. D-1/E-1/2023 dated
02.02.2023 in respect of Uttar Pradesh
Medical
Department
(Ayurvedic
Department) only and prays for directions
to the Respondent no.2 to issue a fresh
advertisement for the Posts Principal after
considering the applied proper reservation
policy accordingly.

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Ms. Jigyasa Singh, learned
counsel holding brief of Ms. Mamta,
learned counsel for the petitioner, Sri
Satyendra
Kumar
Tripathi,
learned
Standing Counsel appearing on behalf of
the respondent nos.1 and 4 and Sri Fuzail
7 All. Prof. Amar Nath Vs. State of U.P. & Ors.
311
Ahmad Ansari, learned counsel appearing
on behalf of the respondent no.2.

2. The present petition has been filed
seeking the following relief:-

"a) Issue a writ, order or
direction in the nature of certiorari, calling
for
record
to
quash
the
Rolling
Advertisement
No.D-1/E-1/2023
dated
02.02.2023 in respect of Uttar Pradesh
Medical
Department
(Ayurvedic
Department) only (Annexure -1 to the writ
petition)

b) Issue a writ, order or direction
in the nature of mandamus, to command
the Respondent no.2 to issue a fresh
advertisement for the Posts Principal after
considering the applied proper reservation
policy accordingly in respect of the
Advertisement
No.D-1/E-1/2023
dated
02.02.2023 in respect of Uttar Pradesh
Medical
Department
(Ayurvedic
Department)/or
decide
the
representation/letter of the petitioner dated
17.02.2023 (Annexure No.5 to the writ
petition)."

3. It is the case of the petitioner that
the cadre strength of the Principal,
Government Ayurvedic Medical College is
8 in number and as such, if the notification
for advertising the vacancy for 4 posts
which
is
exclusively
for
unreserved
category shall violate the reservation policy
along with the roster which is applicable
for reserving at least one post out of four
posts advertised through the impugned
advertisement notification, in that case, the
advertisement
notification
dated
02.02.2023 is bad in law.

4. For substantiating the arguments as
raised on behalf of the petitioner, learned
counsel for the petitioner apprised the
Court that the reservation may not be
exceeded from 50% in any case if at all the
same has been notified for the unreserved
category, in the case it is 100% vacancies
as notified are exclusively for unreserved
category.

5. In absence of application of 100
point roster as defined under the 1994 Act1
shall be applicable which crystal clearly
defines that second, fourth, sixth and eighth
posts shall only be filled up by unreserved
category.

6. Learned counsel for the petitioner
also relied upon the judgment rendered by
Hon'ble the Supreme Court in case of State
of U.P. and others Vs. Sangam Nath
Pandey and others connected with U.P.
Public Service Commission Vs. Manoj
Kumar Singh and others. The extract of
the abovementioned judgment which is
related to the instant matter wherein the
fraction of reservation along with the
roaster has been clarified by Hon'ble the
Supreme Court is reproduced hereinbelow:-

"25. In order to determine as to
what would be the backlog vacancies, it is
necessary to have a look at the relevant
provisions of the Uttar Pradesh Public
Services
(Reservation
for
Scheduled
Castes,
Scheduled Tribes
and Other
Backward Classes) Act 1994 as amended
by the Act No. 1 of 2002.

"2 (d) "year of recruitment" in
relation to a vacancy means a period of
twelve months commencing on the first of
July of a year within which the process of
direct recruitment against which such
vacancy is initiated.

3. Amendment of Section 3 - In
Section 3 of the Principal Act, -
312 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
Scheduled Castes, Scheduled Tribes and
Other Backward Classes of citizens -

(a) in the case of Scheduled
Castes Twenty one percent

(b) in the case of Scheduled
Tribes Two percent

(c) in the case of Other Backward
Twenty seven percent Classes of citizens
Provided that the reservation under clause
) 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 percent of the total vacancies of that
year as also fifty percent of the cadre
strength of the services 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 recruitments 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 percent reservation of the total
vacancies of that year notwithstanding
anything to the contrary contained in sub-
section (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 the
Scheduled Castes."

(b) (i) Sub-sections (3-A),(3-B)
shall be omitted;

(ii) Sub-section (4) shall be
omitted;

(c)
for
sub-section
(5),
the
following sub-

section
shall
be
substituted,
namely :-

"(5) The State Government shall
for applying the reservation under subsection (1), by a notified order, issue a
roster comprising the total cadre strength
of the public service or post indicating
therein the reserve points and the roster so
issued shall 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) is
achieved and the operation of the roster
and the running account shall, thereafter,
come to an end, and when a vacancy arises
thereafter in public service or post the
same shall be filled from amongst the
persons belonging to the category to which
the post belongs in the roster."

A bare perusal of the above
would show that the Act regulates the
extent of reservation in Public Services and
Posts in favour of the persons belonging to
Scheduled Castes, Scheduled Tribes and
Other Backward Classes of citizens and for
matters connected therewith or incidental
thereto. It also provides for a selfcontained mechanism as to how the posts
shall be distributed among the different
categories according to 100 point roster."

7. In the abovementioned referred
judgment as relied upon by learned counsel
7 All. Prof. Amar Nath Vs. State of U.P. & Ors.
313
for the petitioner, the position of vacancy in
respect of reservation which has to be
applicable as per the roster maintained in
pursuance of the 100 point roster defined
under the Act of 1994, Hon'ble the
Supreme Court further clarified that the
roster shall be applicable strictly in
consonance with the reservation and if the
same has to be properly given credence to
the yearwise vacancy arising out of vacant
posts created after retirement or vacated on
any reason, the same has to be strictly filled
up with the reservation available for each
and every category and the same has been
discussed in detail which is reproduced
hereinbelow:-

"38. The exercise of identifying
the year-wise and cadre- wise vacancies
ought to have been conducted by the State
prior to the issuance of the advertisement
as rightly noticed by the learned single
Judge. The purpose of introducing a roster
system was to ensure that the percentages
of
reservation
provided
for
various
categories of persons is effectively and
speedily achieved. This can only be done if
the department concerned identifies the
year-wise vacancies in the cadre. Once the
vacancies are identified, it is enjoined upon
the authorities to ensure that the selection
procedure is completed speedily. This is
necessary to avoid uncertainty to all
categories of candidates.

39. General category, as well as,
the reserved category candidates are likely
to be adversely affected in case the
vacancies are not filled within a reasonable
period of time. As a result of undue delay,
certain candidates will always be in the
danger of becoming overage to apply for
some
particular
posts
falling
in
a
particular
year
of
recruitment.
Unnecessary lethargy in filling up the posts
would also lead to further uncertainty and
chaos among the recruits with regard to
their
seniority,
confirmation
and
promotions. Such a situation only gives rise
to unavoidable litigation, lasting for many
long years. This case epitomizes such
malaise.

40. In our opinion, the State
Government, in the present case, ought to
have initiated the necessary selection
procedure upon due verification of the
posts available for the reserved categories.
It was not sufficient to merely send the
requisition
to
the
Public
Service
Commission. It was necessary for the State
to pursue the matter with the Public Service
Commission for completion of the selection
process. Otherwise, the very purpose of
introducing the roster system and a
running account would be totally defeated.
We may reiterate here the observations
made by this Court in the case of R.K.
Sabharwal (supra). With regard to the
operation of the roster system, in the
aforesaid case, it was observed as follows:-

"5. We see considerable force in
the second contention raised by the learned
counsel
for
the
petitioners.
The
reservations provided under the impugned
Government instructions are to be operated
in accordance with the roster to be
maintained in each Department. The roster
is implemented in the form of running
account from year to year. The purpose of
"running account" is to make sure that the
Scheduled Castes/Schedule Tribes and
Backward Classes get their percentage of
reserved posts. The concept of "running
account" in the impugned instructions has
to be so interpreted that it does not result in
excessive reservation. "16% of the posts ..."
are reserved for members of the Scheduled
Castes and Backward Classes. In a lot of
100 posts those falling at Serial Numbers 1,
7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87
and 91 have been reserved and earmarked
314 INDIAN LAW REPORTS ALLAHABAD SERIES
in the roster for the Scheduled Castes.
Roster points 26 and 76 are reserved for
the members of Backward Classes. It is
thus obvious that when recruitment to a
cadre starts then 14 posts earmarked in the
roster are to be filled from amongst the
members of the Scheduled Castes. To
illustrate, first post in a cadre must go to
the Scheduled Caste and thereafter the said
class is entitled to 7th, 15th, 22nd and
onwards up to 91st post. When the total
number of posts in a cadre are filled by the
operation of the roster then the result
envisaged by the impugned instructions is
achieved. In other words, in a cadre of 100
posts when the posts earmarked in the
roster for the Scheduled Castes and the
Backward Classes are filled the percentage
of reservation provided for the reserved
categories
is
achieved.
We
see
no
justification
to
operate
the
roster
thereafter. The "running account" is to
operate only till the quota provided under
the impugned instructions is reached and
not
thereafter.
Once
the
prescribed
percentage of posts is filled the numerical
test of adequacy is satisfied and thereafter
the roster does not survive. The percentage
of reservation is the desired representation
of the Backward Classes in the State
Services and is consistent with the
demographic
estimate
based
on
the
proportion worked out in relation to their
population. The numerical quota of posts is
not a shifting boundary but represents a
figure with due application of mind.
Therefore, the only way to assure equality
of opportunity to the Backward Classes and
the general category is to permit the roster
to operate till the time the respective
appointees/promotees occupy the posts
meant for them in the roster. The operation
of the roster and the "running account"
must come to an end thereafter. The
vacancies arising in the cadre, after the
initial posts are filled, will pose no
difficulty. As and when there is a vacancy
whether permanent or temporary in a
particular post the same has to be filled
from amongst the category to which the
post belonged in the roster. For example
the Scheduled Caste persons holding the
posts at roster points 1, 7, 15 retire then
these slots are to be filled from amongst the
persons belonging to the Scheduled Castes.
Similarly, if the persons holding the post at
points 8 to 14 or 23 to 29 retire then these
slots are to be filled from among the
general
category.
By
following
this
procedure there shall neither be shortfall
nor excess in the percentage of reservation.

6. The expressions `posts' and
`vacancies', often used in the executive
instructions providing for reservations, are
rather problematical. The word `post'
means an appointment, job, office or
employment. A position to which a person
is
appointed.
`Vacancy'
means
an
unoccupied post or office. The plain
meaning of the two expressions make it
clear that there must be a `post' in
existence to enable the `vacancy' to occur.
The cadre-strength is always measured by
the number of posts comprising the cadre.
Right to be considered for appointment can
only be claimed in respect of a post in a
cadre. As a consequence the percentage of
reservation has to be worked out in relation
to the number of posts which form the
cadre-strength. The concept of `vacancy'
has
no
relevance
in
operating
the
percentage of reservation.

7. When all the roster points in a
cadre are filled the required percentage of
reservation is achieved. Once the total
cadre has full representation of the
Scheduled Castes/Tribes and Backward
Classes in accordance with the reservation
policy then the vacancies arising thereafter
in the cadre are to be filled from amongst
7 All. Prof. Amar Nath Vs. State of U.P. & Ors.
315
the category of persons to whom the
respective vacancies belong. Jeevan Reddy,
J. speaking for the majority in Indra
Sawhney v. Union of India (1992 Supp (3)
SCC 217) observed as under: (SCC p. 737,
para 814)

"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 Scheduled 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 the cadre, service or the
unit as the case may be."

42. The facts narrated above
would indicate is that the situation in the
present case is almost as it was depicted by
this Court in the case of Indra Sawhney
(supra).

43. We, therefore, reiterate that it
is necessary for the department to identify
year-wise vacancies for the cadre. It is also
necessary to fill up the posts speedily in
order to avoid certain candidates being
rendered ineligible as they may have
become overage. It is for this reason that
Section 3 has placed importance on the
year of recruitment as also on the process
of selection.

44. In our opinion, the authorities
have been rather casual in their approach
in implementing the reservation policy, in
letter and spirit. We are, however,
conscious of the fact that the 367 posts
lying vacant for a number of years are
meant only for the reserved categories.
They have been calculated on the basis of
the percentages reserved for various
categories. In segregation of the aforesaid
posts, none of the unreserved categories
would be deprived of any posts which ought
legitimately to have fallen to their share.
Therefore, we are of the considered opinion
that the interest of justice, in the peculiar
facts of this case, demands that the course
adopted by the State Government in
segregating
367
posts
for
special
recruitment ought not to be disturbed. "

8.
Per
contra,
learned
Standing
Counsel as well as learned counsel
appearing on behalf of the Commission
vehemently opposed the prayer as made in
the
petition
and
supported
the
advertisement
notification
issued
for
recruitment of four vacant posts for the post
316 INDIAN LAW REPORTS ALLAHABAD SERIES
of
Principal,
Government
Ayurvedic
Medical College which has been strictly in
accordance with the reservation available
for
the
reserved
category
and
in
consonance with the 100 point roster which
is mandatory to be applied at the time of
filling up the cadre strength which is only 8
in numbers.

9. The vital aspect which has been
mentioned at the time of hearing of the
matter that the total cadre strength of the
Principal, Government Ayurvedic Medical
College is only 8 wherein as per the
reserved category for Scheduled Caste that
is maximum limit to 21%, it comes to 1.68
posts which is strictly defined under the
Act of 1994 as mentioned under Section
3(1) which is also quoted hereinbelow:-

"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
recruitment's 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
Twentyone per
cent;
(b)
in the case of
Scheduled Tribes
Two
per
cent;
(c)
in case of Other
Backward Classes
of citizens
Twentyseven
per
cent:

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."

10. While substantiating the stand
taken up by learned counsel appearing on
behalf of the Commission, he also
mentioned Section 3(5) of the 1994 Act
which
clearly
says
that
the
State
Government
shall
for
applying
the
reservation under sub-section (1) of Section
3 by a notified order, issue a roster, which
shall be continuously applied till it is
exhausted.

11. It is also the admitted fact and
position which is to be taken into
consideration that if the fraction comes to
1.68, it will be only one post shall be
available for reserved category.

12. Learned Standing Counsel came
up with specific instructions which are
taken on record that one post of the
reserved
category
has
already
been
occupied wherein a regular incumbent is
rendering
his
services
as
Principal,
Government Ayurvedic Medical College
and as such, the notification for selection of
four posts for unreserved category for the
same post is justified in nature and the
same is in the strict compliance of the 1994
Act.

13. The entire stand which has been
taken up by the respondent nos.2 is also
based on the verdicts pronounced by
Hon'ble the Supreme Court in the case of
M.R. Balaji Vs. The State of Mysore and
7 All. Prof. Amar Nath Vs. State of U.P. & Ors.
317
R.K. Sabharwal and others Vs. State of
Punjab and others.

14. After giving due consideration to
the submissions extended by learned
counsels for parties and giving regard to the
judgments cited by both the counsels, the
instant matter has to be testified only on
two grounds:-

(i) Whether the number of posts
as notified, is in accordance to the
reservation available for reserved category?

(ii) The total cadre strength of the
posts of Principal has been filled up,
notified
under
the
advertisement
notification which is under challenged in
the instant petition is fulfilling the roster or
not?

15. The ratio of the judgment as relied
upon by learned counsel for the petitioner
in case of the State of U.P. Vs. Sangam
Nath Pandey connected with U.P. Public
Service Commission Vs. Manoj Kumar
Singh (supra) clearly defines that the posts
which are meant for the reserved category,
would be offered only to the reserved
category so long as the reserved roster
point are not occupied by reserved
category, but at the same time, there is
hardly
any
whisper
with
regard
to
exceeding the limit of the reservation and
the case as mentioned by learned counsel
for the petitioner with regard to reserving
two posts out of total cadre strength of the
Principal, Government Ayurvedic Medical
College which is 8 in number then in that
case, the reservation shall available for
reserved category i.e. specifically for the
Scheduled Caste to the tune of 21% shall
exceed to 25%, moreover, the roster as
mentioned by learned counsel for the
petitioner which is 100 point roster and the
bifurcation of the posts available for the
reserved category as well as for the
unreserved category shall be applicable for
the 8 posts which is total cadre strength of
the post of the Principal, Government
Ayurvedic Medical College has to be
recalculated in terms of 100 point roster,
and as such, the entire exercise as initiated
by the U.P. Public Service Commission in
consultaion with the State Government
does not reflect that the maximum capping
limit of 21% for the post which is reserved
for the Scheduled Caste, has ever been
disturbed.

16. The ratio of the judgment as
referred by learned counsel for the
petitioner has already been given credence
and the action of the respondents is strictly
in accordance with the same.

17. The two judgments which have
been relied upon by learned counsel
appearing on behalf of the respondent no.2.
the case of R.K. Sabharwal (supra) has
already been discussed in the judgment of
Sangam Nath Pandey (supra) as relied
upon by learned counsel for the petitioner
and the same is already discussed in the
preceding paragraphs and action of the
respondents is strictly in accordance with
the same which needs not to be reiterated
again. After having the judgment passed in
M.R. Balaji (supra) rendered by Hon'ble
the Supreme Court which is solely based on
capping limit of reservation which is not in
dispute at the time of challenging the
advertisement notification in the instant
petition.

18.
The preliminary
ground
for
challenging the order which impugned the
present petition is the action of the
respondents in shape of notifying the four
posts for the post of Principal, Government
Ayurvedic Medical College exclusively for
318 INDIAN LAW REPORTS ALLAHABAD SERIES
unreserved category shall exceed the
maximum capping of 50% of reservation in
favour of the unreserved category and the
same is contrary to the guiding principles
laid down in the case of Indra Sawhney
Vs. Union of India.

19. Answering the abovementioned
framed questions, it is crystal clear that the
reservation applicable for reserved category
especially for the Scheduled Caste which is
21% which comes down in fraction to 1.68
and as such, one post out of 8 has to be
kept
reserved
for
reserved
category
candidate belongs to the Scheduled Caste
and as per the factual narration made by
learned Standing Counsel, one Sri Suresh
Chandra is already rendering his services as
Principal, Government Ayurvedic Medical
College and as such, there is a strict
compliance of the reservation mandated
under 21%.

20. Sofar as the application of roster is
concerned, the same is also applied by way
of de-categorization of the posts in reserved
category, unreserved category and other
backward classes. It is the admitted fact
which has been narrated in the petition as
well as apprised through the instructions by
learned Standing Counsel that one post has
been already occupied by reserved category
under Scheduled Caste and two posts under
the Other Backward Classes are also
occupied and as such, the notification
issued for the four posts for unreserved
category, cannot be termed as illegal.

21. In view of the aforementioned
observations, the writ petition stands
dismissed.
----------
(2023) 7 ILRA 318
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2023
BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 6376 of 2023

Arvind Kumar, Lekhpal, Tehsil- Bahedi,
Distt: Bareilly ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Adarsh Shukla, Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Disciplinary
Proceedings - Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 7 - The suspension order can
be passed only on consideration of the
charges as levelled against the petitioner.
The suspension order cannot be passed
merely on assumption. Moreover, at the
time of passing the suspension order, the
Disciplinary Authority has to exercise his
discretion
by
way
of
applying
his
independent and free mind by way of
quantifying that whether the suspension
passed against the delinquent or not for
substantiating his arguments. (Para 4, 5)

In the present case, the order of suspension has
been passed by the Disciplinary Authority only
on the recommendation of the Tehsildar who
has been nominated as an Inquiry Officer vide
order dated 27.02.2023 for conduction of fair
inquiry, wherein it has been presumed by the
Inquiry Officer that if the petitioner will remain
at the services of posting where he is presently
posted, he may tamper evidences which may
not culminate into fair inquiry. (Para 10)

Since the recommendations for suspension have
been made by the Inquiry Officer under the
disciplinary proceedings initiated against the
petitioner and not by any other authority, who is
not related to disciplinary proceedings, there is
hardly any scope for interference in the order
impugned. (Para 11, 12)