# 15 (ADDL.) S.C.R. 1194 STATE OF U.P. AND ORS v. SANGAM NATH PANDEY AND ORS - **Citation:** [2010] 15 S.C.R. 1194 - **Court:** Supreme Court of India - **Decided:** 2010-12-15 - **Case number:** Civil Appeal No. 4360 of 2010 - **Bench:** B. Sudershan Reddy, Surinder Singh Nijjar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-1194-state-of-u-p-and-ors-v-sangam-nath-pandey-and-ors-26729 - **Pages:** 34 ## Headnote Recruitment - Special recruitment for reserved category C - Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (as amended) - ss. 2(d), 3(2) and 3(5) - Uttar Pradesh Public Services - Public Service Commission initiated selection process - Exclusion of 367 vacancies from general D recruitment - Challenge to - Writ Petition - High Court held that the action of the State in treating 367 vacancies belonging to reserved category as backlog vacancies was not justified and further issued a direction to the State Government to declare the result afresh in respect of these vacancies as if E they are not backlog vacancies and that appointments may be ottered in terms of the roster provided under s.3(5) - On appeal, hf:Jld: A harmonious construction of ss.2(d), 3(2) and 3(5) would lead to the conclusion, that only those vacancies can be declared backlog vacancies, within the reserved F category, which were subject matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection - Any vacancy, not subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy G - On tacts, the selection process for the 367 posts in question was not completed, therefore, the aforesaid vacancies could not be termed as unfilled vacancies belonging to the reserved categories - The authorities were rather casual in their approach in implementing the reservation policy, in letter and H 1194 STATE OF U.P. AND ORS. v. SANGAM NATH 1195 PANDEY AND ORS. spirit - However, the 367 posts lying vacant for number of A years are meant only for the reserved 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 - The interest of justice, in the peculiar facts of this case, demands that the 8 course adopted by the State Government in segregating 367 posts f · special recruitment ought not to be disturbed - Interpretation of Statutes - Harmonious construction. There was reservation for different categories of backward classes in the Uttar Pradesh Public Services. C The State Government addressed letter to the Public Service Commission with a request to initiate the process of selection of vacant posts meant exclusively for the reserved categories of Scheduled Castes, Scheduled Tribes and Backward Classes. It was stated that there D were a total number of 367 posts in the aforesaid reserved categories for which, it was necessary to initiate the process of selection as a special recruitment. The Public Service Commission, thereafter, initiated the selection process. Consequently, an option was given to E the reserved category candidates as to their choice for being considered against the 520 posts of general recruitment or against 367 posts of special recruitment meant exclusively for the reserved category. The reserved category candidates apparently gave their option for the F Special recruitment category of 367 posts. The interview was held thereafter for 520 posts for general recruitment and 367 posts for special recruitment. The final results were declared. Aggrieved by the exclusion of 367 posts for the G special recruitment, eight unsuccessful candidates belonging to the General category filed writ petitions in the High Court. The grievance made by the writ petitioners is the exclusion of 367 vacancies on the basis H \ 1196 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A that they are backlog vacancies which have remained unfilled and are to be filled up by way of a special recruitment. According to them, by exclusion of 367 vacancies, the total vacancies for the general recruitment was reduced to 520 which unnecessarily resulted in a B reduction of the posts which could be filled by all the categories in the general recruitment. The petitioners claimed that the excl ## Text _Characters 0–39,677 of 63,198. This is a partial read: ask again with offset=39677 for what follows._ A B [2010] 15 (ADDL.) S.C.R. 1194 STATE OF U.P. AND ORS. v. SANGAM NATH PANDEY AND ORS. (Civil Appeal No. 4360 of 2010) DECEMBER 15, 2010 [B. SUDERSHAN REDDY AND SURINDER SINGH NIJJAR, JJ.] Recruitment - Special recruitment for reserved category C - Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (as amended) - ss. 2(d), 3(2) and 3(5) - Uttar Pradesh Public Services - Public Service Commission initiated selection process - Exclusion of 367 vacancies from general D recruitment - Challenge to - Writ Petition - High Court held that the action of the State in treating 367 vacancies belonging to reserved category as backlog vacancies was not justified and further issued a direction to the State Government to declare the result afresh in respect of these vacancies as if E they are not backlog vacancies and that appointments may be ottered in terms of the roster provided under s.3(5) - On appeal, hf:Jld: A harmonious construction of ss.2(d), 3(2) and 3(5) would lead to the conclusion, that only those vacancies can be declared backlog vacancies, within the reserved F category, which were subject matter of advertisement but remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection - Any vacancy, not subjected to a complete process of selection, even though vacant, cannot be treated as a backlog vacancy G - On tacts, the selection process for the 367 posts in question was not completed, therefore, the aforesaid vacancies could not be termed as unfilled vacancies belonging to the reserved categories - The authorities were rather casual in their approach in implementing the reservation policy, in letter and H 1194 STATE OF U.P. AND ORS. v. SANGAM NATH 1195 PANDEY AND ORS. spirit - However, the 367 posts lying vacant for number of A years are meant only for the reserved 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 - The interest of justice, in the peculiar facts of this case, demands that the 8 course adopted by the State Government in segregating 367 posts f · special recruitment ought not to be disturbed - Interpretation of Statutes - Harmonious construction. There was reservation for different categories of backward classes in the Uttar Pradesh Public Services. C The State Government addressed letter to the Public Service Commission with a request to initiate the process of selection of vacant posts meant exclusively for the reserved categories of Scheduled Castes, Scheduled Tribes and Backward Classes. It was stated that there D were a total number of 367 posts in the aforesaid reserved categories for which, it was necessary to initiate the process of selection as a special recruitment. The Public Service Commission, thereafter, initiated the selection process. Consequently, an option was given to E the reserved category candidates as to their choice for being considered against the 520 posts of general recruitment or against 367 posts of special recruitment meant exclusively for the reserved category. The reserved category candidates apparently gave their option for the F Special recruitment category of 367 posts. The interview was held thereafter for 520 posts for general recruitment and 367 posts for special recruitment. The final results were declared. Aggrieved by the exclusion of 367 posts for the G special recruitment, eight unsuccessful candidates belonging to the General category filed writ petitions in the High Court. The grievance made by the writ petitioners is the exclusion of 367 vacancies on the basis H \ 1196 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A that they are backlog vacancies which have remained unfilled and are to be filled up by way of a special recruitment. According to them, by exclusion of 367 vacancies, the total vacancies for the general recruitment was reduced to 520 which unnecessarily resulted in a B reduction of the posts which could be filled by all the categories in the general recruitment. The petitioners claimed that the exclusion of 367 vacancies from the general recruitment was without any legal sanction. It was· the case of the petitioners that a vacancy can only be c declared as a backlog vacancy provided there was a complete selection procedure in any recruitment year and the vacancy remained unfilled; that since there had been no efforts earlier to fill in all the 367 posts and declared as backlog, the exclusion of the same from the general 0 recruitment was illegal. The High Court held that the action of the State of Uttar Pradesh in treating 367 unfilled vacancies belonging to the reserved category as backlog vacancies was legally not justified and further issued a direction to the E State Government to declare the result afresh in respect of these vacancies as if they are not backlog vacancies and that appointments may be offered in terms of the roster provided under notification dated 25th May, 2002 issued in exercise of powers under Section 3(5) of the F Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. The State contended that the implementation of the G directions of the High Court would create legal as well as administrative complication; that 367 posts which were segregated for special recruitment did not, in any manner, infringe the rights of the general category candidates; that a conjoint reading of the second proviso to subH STATE OF U.P. AND ORS. v. SANGAM NATH 1197 PANDEY AND ORS. section (1) of Section .3 and sub-sections (2) and (5) of A the said Section made it abundantly clear that so long as the reservation did not exceed 50 per cent of the cadre strength, the general category candidates could have no objection in the special recruitment undertaken in order to complete the 100 points roster; and that the High Court 8 misconstrued Section 3 in concluding that the action of the State Government in treating 367 vacancies as backlog was legally not justified. If was contended that the State had endeavoured to achieve the object of the reservation without prejudicing the claim of the general c category candidates; that out of the total sanctioned strength of the cadre of 4127 posts, 50 per cent for general category would be 2066 posts and out of that share, the general category already occupied 1808 posts leaving a balance of 260 posts which were available to D be filled up for general category; that the total number of vacancies were 887 out of which 520 earmarked for general recruitment to ensure that the general category gets 260 vacancies i.e. 50 per cent of the total available vacancies in the cadre and that remaining 367 vacancies were treated as backlog vacancies for the reserved categories. It was contended that merely because the vacancies were not advertised would not render the action of the State Government illegal. E On the other hand, the respondents contended that F by excluding 367 vacancies and earmarking the same for special recruitment, the State of U.P. infringed the 50 per cent rule in the year of recruitment as well as in the cadre; and that by excluding 367 posts as backlog, the State reduced the strength of the percentage meant for G the general recruitment category and recruitment of the reserved category went up to 71 per cent as against 50 per cent. · Allowing the appeals, the Court H" 1198 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A HELD:1.1. A bare perusal of 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 Uttar Pradesh Public Services (Reservation for Scheduled B Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2001would 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 c citizens and for matters connected therewith or incidental thereto. It also provides for a self-contained mechanism as to how the posts shall be distributed among the different categories according to 100 point roster. The second proviso to Section 3 of the Act, which is relevant 0 to matter in issue herein, stipulates that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment, 50 per cent of the total vacancies of that year as also 50 per cent of the cadres strength of the service to which the recruitment is to be made. The proviso clearly postulates a two-fold. E restriction on the extent to which vacancies can be · reserved in a year of recruitment as also the cadre ; strength of the service. It is clearly provided that in any year of recruitment reservations of vacancies for all categories of persons shall not exceed 50 per cent of the F total vacancies of the year of recruitment in which such recruitment takes place. Under the second part of the proviso, reservation can also not exceed 50 per cent of the cadre strength of the service to which recruitment is to be made. [Para 15] [1216-F-H; 1217-A-C] G 1.2. In any recruitment year, it may happen that the candidates belonging to the reserved category may not be available to fill the vacancies falling to the share of the particular reserved category. In such circumstances, H sub-section (2) of Section 3 enables the State to carry STATE OF U.P. AND ORS. v. SANGAM NATH 1199 PANDEY AND ORS. forward the unfilled vacancy/vacancies to be filled A through special recruitment as a separate class of vacancy. Such class of vacancy can not be intermingled with the vacancies of the year of recruitment in which it is filled. It also can not be counted for the purpose of determining of ceiling of 50 per cent reservation of the B total vacancies of that year. The provision contained in sub-section 2 is, notwithstanding anything to the contrary contained in sub-section 1, which provide for a total 50 per ~ent reservation for the categories of Scheduled Castes, Scheduled Tribes and Other Backward Classes, c i.e., 21 per cent, 2 per cent and 27 per cent respectively. The terminology of the aforesaid section is clear and unambiguous. Therefore, construed in its ordinary, literal sense, the sub section provides that the carried forward vacancies are not to be included in calculating the 50 per D cent cap as contained in Proviso 2 to Section 3 (1 ). The special recruitment may be held in that very year or in the succeeding year or years of recruitment as a separate class of vacancy. Sub-section 3 further providesthat if vacancy/vacancies reserved for Scheduled Tribes remained unfilled even after three special recruitment E made under sub-section 2, such vacancies are to be filled up from amongst persons belonging to the Scheduled Castes. In other words, unfilled vacancies falling to the share of Backward Classes and Scheduled Castes and Scheduled Tribes, can be offered to the Scheduled F Castes category. These provisions clearly indicate that the posts which are meant for the reserved categories would be offered only to the reserved categories so long as the reserved roster points are not occupied by the reserved categories. [Para 16] [1217-C-H; 1218-A-B] G 1.3. The aforesaid conclusion also flows naturally from sub-section 5 of Section 3. The plain language of aforesaid sub-section clearly shows that reservation under sub-section 1 of Section 3 shall be achieved by H 1200 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A application of a roster indicating therein; the total cadre strength of the Public Service or Posts and the reserved points in the roster. The roster so issued is required to be implemented in the form of a running account from year to year until the reservation for various categories B of persons mentioned in sub-section 1 is achieved. The vacancies arising thereafter in the Public Service or Posts is to be filled from among the persons belonging to the category to which the posts belong in the roster. [Para 17] [1218-C-D] c 1.4. A harmonious construction of sections 2(d), 3(2) and 3(5) of the Act would lead to the conclusion, as stated by the High Court, that only those vacancies can be declared backlog vacancies, within the reserved category, which were subject matter of advertisement but D remained unfilled because of non-availability of suitable candidates, within the reserved category, after selection. It is only in respect of such vacancy that the procedure qua backlog vacancy can be adopted. Any vacancy, which has not been subjected to a complete process of E selection, even though vacant, cannot be treated as a backlog vacancy. [Para 19] [1220-G-H; 1221-A-B] 1.5. Section 2(d) defines a period of 12 months commencing on 1st of July of a year as a year of F recruitment for calculation of the number of vacancies. Section 3(1) gives the different percentages of vacancies, which are reserved for different categories of backward class candidates. The percentage of vacancies reserved under Section 3(1) had to be filled according to the roster G mechanism provided under sub-section 5 of Section 3. Section 2(d) would tend to indicate that the State was required to determine the number of available vacancies in every year of recruitment. Once the vacancies are determined, necessary requisition would have to be sent H STATE OF U.P. AND ORS. v. SANGAM NATH 1201 PANDEY AND ORS. to the Public Service Commission for initiating the A process of selection. (Para 20] (1221-C-E] 1.6. In the instant case, it is seen that inspite of the correspondence _of the Government with the Public Service Commission intimating the number of posts to be 8 filled at various stages, the posts meant for the reserved categories could not be filled. The State Government had only partly performed its duties by sending the necessary requisitions to the Public Service Commission for initiating the selection process. Thereafter, the selection C process ought to have been completed as provided under the Statutory Rules. It appears that the selection process for the 367 posts was not completed. Therefore, the aforesaid vacancies could not be termed as unfilled vacancies belonging to the reserved categories. But, at the same time, it also can not be disputed by anybody D that the 367 posts, which are sought to be filled by special recruitment ,are posts, which are meant for the reserved categoriesand have remained unfilled. This is evident from the letter dated 25th October, 2005 pointing out that out of the 887 posts mentioned in the letter dated E 13th October, 2005, 367 posts were intact reserved category posts, which had been lying vacant and had been wrongly included in the general recruitment. Hence, a request was made to exclude the aforesaid posts from the general selection and be filled by holding a special F recruitment for the reserved category candidates. (Paras 20, 21] (1221-D-H; 1222-A-B] 1.7. The exercise of identifying the year-wise and cadre-wise vacancies ought to have been conducted by G the State prior to the issuance of the advertisement. 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 H1 1202 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A 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 B avoid uncertainty to all categories of candidates. 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 rICTION : Civil Appeal No. 4360 of 2010. H 1204 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R. A From the Judgment & Order dated 04.10.2007 of the High Court of Judicature at Allahabad in Special Appeal No. 1202 of 2006. Shail Kr. Dwivedi, AAG Pradeep Misra, Ardendumouli 8 Prasad, Vandana Mishra, Shekhar Raj Sharma, Ashutosh Kr. Sharma, Suraj Singh, Aviral Shukla, Manoj Kr. Dwivedi for the Appellants. V.J. Francis, Anupam Mishra, Vivek Kandari, Jagjit Singh Chhabra, Abhik Kumar, Mohd. Mustafa, Sidhartha Shankar C Ray, Rajesh Kumar Naidu, Tripurari Ray, Medhavi Kumar, Vishnu Sharma, Chandra Prakash Pandey for the Respondents. The Judgment of the Court was delivered by D SURINDER SINGH NIJJAR, J. 1. This appeal has been filed by the State of Uttar Pradesh challenging the order passed by the High Court of Judicature at Allahabad, in Special Appeal No.1202 of 2006 whereby the Division Bench of the High Court observed that the action of the State in treating 367 vacancies E belonging to the reserved category as backlog vacancies was legally not justified and further issued a direction to the State Government to declare the result afresh in respect of these vacancies as if they are not backlog vacancies and that appointments may be offered in terms of the roster provided F under notification dated 25th May, 2002 issued in exercise of powers under Section 3 (5) of the U.P Act No. 4 of 1994. 2. In order to appreciate the factual and legal controversies raised in this matter, it would be necessary to notice the various G legislative provisions which govern the field of reservation in Public Services, in the State of Uttar Pradesh. Initially, the reservation in pub!ic services in the State of Uttar Pradesh was regulated through various Government orders, issued from time to time. The Uttar Pradesh Public Services (Reservation for H STATE OF U.P. AND ORS. v. SANGAM NATH 1205 PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.] Scheduled Castes, Scheduled Tribes and Other Backward A Classes) Act, 1994 (U.P. Act No. 4 of 1994) (hereinafter referred to as "1994 Act") was enacted by the State of Uttar Pradesh following the judgment of this Court in Indra Sawhney Vs. Union of lndia 1• The aforesaid act repealed the Uttar Pradesh Public Services (Regulation for Backward Classes) B i Act, 1989 and the Uttar Pradesh Public Services (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1993 and the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and the other Backward Classes) Ordinance, 1994. c 3. The 1994 Act itself was amended by the Uttar Pradesh Public S.ervice (Reservation for Scheduled Castes, SCheduled Tribes and Other Backwards Classes) (Amendment) Act, 2001(U.P. Act No. 21 of 2001). Some provisions of this Act were challenged in this Court in a writ petition. This Court; by D Interim Order dated 21st January, 2002 directed that no executive order, in pursuance of the aforesaid Act of 2001, shall be passed during the pe11dency of the writ petition. Since a large number of vacancies in public service is lying vacant, the State of Uttar Pradesh decided to restore the original position E as obtained under the 1994 Act, i.e. before the amendment by the U.P. Act No. 21 of 2001. Thereafter, the Governor of Uttar Pradesh on 6th June, 2002 promulgated the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Ordinance F 2002. This was subsequently replaced by the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Act, 2002 (U.P. Act No. 1 of 2002). 4. Under the 1994 Act, very comprehensive provisions have been made to provide for reservation in Public Services and Posts in favour of the person belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of 1. (1992) supp 3 sec 211. G 1206 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R. A citizens and for matters connected therewith or incidental thereto. Section 3 of the aforesaid Act provides certain percentages of vacancies reserved for different categories of backward classes of citizens. The following percentages were prescribed:- B c Scheduled Castes 21% Scheduled Tribes 2% Other Backward Classes 27% These vacancies were to be filled in accordance with the roster provided under sub-section 5 of Section 3. The aforesaid percentages remained the same even under the amended Section 3 as contained in the Amendment Act, 2002. In 0 accordance with the aforesaid formula, a requisition was made by the Irrigation Department Government of Uttar Pradesh on 20th October, 1999 to the Uttar Pradesh Public Service Commission, for initiating the process of selection of candidates for the posts of Junior Engineer (Civil). Pursuant to this request, an advertisement was issued on 22nd December, E 2000 for filling up 945 such posts. The last date for making the applications was 27th January, 2001. The break up of the said posts sought to be filled up was as follows: 477 general category F 257 backward classes 200 Schedule Caste category The written examinations were conducted on 22nd/23rd G December, 2001. The aforesaid examination was conducted without taking into consideration the reorganization of the State of Uttar Pradesh and the creation of the State of Uttaranchal on 9th November, 2000. There was a 2 per cent reduction in vacancies upon creation of the aforesaid new State. There was H also an increase in the number of available vacancies by STATE OF U.P. AND ORS. v. SANGAM NATH 1207 PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.] inclusion of the recruitment year 2003-2004. Thus, the total A number of posts against which the selection was to be conducted was reduced from 954 to 887. The break up was as follows:- General Category 260 Backward Classes 391 Scheduled Castes 223 Scheduled Tribes . 13 Consequently, by letter dated 6th November, 2003, the State Government informed the Public Service Commission to take further action for selection of 887 posts for the year 2003-2004 as opposed to the earlier requisition for 954 posts. Acting upon B c the aforesaid requisition, the result of the written examination D• was declared on 6th October, 2005. Thereafter by a letter dated 13th October, 2005, the Government informed the Public Services Commission that at the time of sending of the original requisition, the posts of E reserved category have been ihcorrectly got included in the general selection process. Therefore, the requisition be amended. in this requisition, the following description of the general selection posts was given and a request was made to initiate the process of selection:- F General Category 260 Scheduled Castes 109 Scheduled Tribes 10 G Backward Classes 141 Thereafter, the Government addressed another letter dated 25th October, 2005 to the Public Service Commission with a request to initiate the process of selection of the vacant posts H 1208 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A meant exclusively for the reserved categories of Scheduled Castes, Scheduled Tribes and Backward Classes. It was stated that there are a total number of 367 posts in the aforesaid reserved categories for which, it was necessary to initiate the process of selection as a special recruitment. The B break up of the posts category wise was:- c Scheduled Castes 114 Scheduled Tribes 3 Backward Classes 250 5 .. The Public Service Commission, thereafter, initiated the selection process by incorporating the various changes noticed above. Consequently, an option was given to thE reserved 0 category candidates as to their choice for being considered against the 520 posts of general recruitment or against 367 posts of special recruitment meant exclusively for the reserved category. The reserved category candidates appear to have, given their option for the Special recruitment category of 367' posts. The interview was held thereafter between 21st E November. 2005 to 12th January, 2006 for 520 posts for general recruitment and 367 posts for special recruitment. The final i'esults were declared on 12th March, 2006. It is not disputed that respondent No. 1 to 3 and 5 had qualified in the written examination and had appeared in the interview. It is also F not disputed that all these respondents remained unsuccessful in the final selection. 6. Aggrieved by the exclusion of 367 posts for the special recruitment, eight unsuccessful candidates belonging to the G General category filed four writ petitions in the High Court of Judicature at Allahabad. It was the claim of the writ petitioners that the advertisement dated 20th/22nd December, 2000 was to fill the 954 posts, which was subsequently modified to 887. 50 per cent of the posts were reserved for different categories H of Scheduled Castes, Scheduled Tribes and Other Backward STATE OF U.P. AND ORS. v. SANGAM NATH 1209 PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.] Classes. The petitioners had no grievance about the reduction A of vacancies as indicated above. They also do not have any grievance about the 50 per cent of the posts reserved for the different categories. The only grievance made by the writ petitioners is the exclusion of 367 vacancies on the basis that they are backlog vacancies which have remained unfilled and s are to be filled up by way of a special recruitment. According to them, by exclusion of 367 vacancies, the total vacancies for the general recruitment have been reduced to 520. This has unnecessarily resulted in a reduction of the posts which could be filled by all the categories in the general recruitment. The c petitioners claimed that the exclusion of 367 vacancies from the general recruitment was without any legal sanction. It was the case of the petitioners that a vacancy can only be declared as a backlog vacancy provided there was a complete selection procedure in any recruitment year and the vacancy remained 0 unfilled. Since there had been no efforts earlier to fill in all the 367 posts and declared as backlog, the exclusion of the same from the general recruitment was illegal. 7. The learned single Judge upon consideration of the . various facts concluded that the general strength of the cadre E being 4217 posts, 50 per cent of the general category would be 2066 posts. Out of these 2066 posts, 1808 posts were already occupied and only 260 posts were available for the nonreserved category. The learned single Judge further observed that in view of the number of posts occupied by the general F category, it cannot be said that there has been any choking of the general category as indicated in the case of Indra Sawhney (supra). By reducing the number of posts for the general category, the objective of reservation policy is being achieved. The learned single Judge relied on the letter dated 4th July, G 2006 to conclude that the State had endeavored to achieve the object of reservation without prejudicing the claim of the general category candidates. The learned single Judge also observed that H A B c D E 1210 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R. "a perusal of section 3 of the act indicates that it is not necessary for any vacancy having been advertised on an earlier occasion in order to carry out the special recruitment. The special recruitment has to be made with the sole objective of achieving the target of unfilled vacancies of the reserve category after applying the roster. The State Government, in the opinion of the Court, has segregated the 367 posts as posts for special recruitment in view of the fact that these posts exclusively belong to the reserved category remains undisputed. The petitioner, who belongs to the general category, therefore, cannot have any right or claim against the said posts, even if, they have been advertised by the State Government. The posts, which are meant to be filled up by the reserved category, cannot be offered to the general category candidates. In this view of the matter, the State Government, has to apply the roster in order to achieve the target. The questions as to whether they are backlog vacancies or not need not to be probed any further in view of the fact that the applicability of the roster against the said posts has to be determined. The aforesaid discussions, therefore, leave to only one conclusion that the State Government has not over stepped the 50 per cent reservation quota but the selections have to be finalized after applying the roster." 8. The learned single Judge concluded that the 50 per cent F limit as provided in the second proviso has not been transgressed by the State in offering the 367 vacancies for special recruitment as backlog vacancies. It is, however, observed that the State Government ought to undertake the exercise of carrying out the calculation of the exact number of G vacancies on the basis of the roster provided under Section 3, sub-section 5 of the 1994 Act. The writ petitions were disposed of with the aforesaid observations. 9. Aggrieved against the aforesaid, the writ petitioners preferred Special Appeal No. 1202 of 2006 before the Division H STATE OF U.P. AND ORS. v. SANGAM NATH 1211 PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.] Bench. The Division Bench recorded the following conclusions:- A "In view of the aforesaid we clarify that the backlog vacancies with reference to Clause 2 of Section 3 of U.P. Act No. 4 of 1994 as amended by U.P. Act No. 1 of 2002 necessarily mean those vacancies within the reserved B . category which were subject matter of an earlier advertisement but remained unfilled because of non availability of suitable candidates within the reserved category after selection. It is only in respect of such vacancies that the procedure qua backlog vacancies can C be adopted. We may further clarify that any vacancy in the reserved category (however old it may be), if it had not been advertised earlier and was not a part of an earlier process of selection which was completed, the same cannot be termed to be a backlog vacancy. D In the facts and circumstances of the present case it is not in dispute that the total number of vacancies which were advertised earlier i.e. 954 but subsequently reduced to 887 were not covered by any earlier advertisement nor were part of any process of selection and, therefore, none of the E vacancies which were subject matter of the advertisement in question (belonging to the reserved category) can be termed to be backlog vacancy. Therefore, the action of the ·' State respondents treating 367 vacancies belonging to the reserved category as backlog vacancies is legally not F justified. Respondents are directed to declare the result afresh in respect of these vacancies as if they are not backlog vacancies and appointments may bl offered in terms of the roster provided for under notification dated 25th May, 2002 issued in exercise of powers under Section G 3(1) read with Section 3(5) of the U.P. Act No. 4 of 1994. The aforesaid exercise may be completed by the State respondents within two months from the date a certified copy of this order is filed before the authority concerned." 10. We have heard the counsel for the parties. H 1212 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A 11. Mr. Dwivedi appearing for the State of U.P. submits that the directions issued by the Division Bench would only unsettle the settled position. He submits that 703 posts have been filled up against 887 posts that were advertised. Further 183 posts would be filled in compliance with the interim order B of the Division Bench. All the selected candidates have joined and have completed almost three years of service. The implementation of the directions of the High Court would create legal as well as administrative complication. He further submits that 367 posts which were segregated for special recruitment c do not, in any manner, infringe the rights of the general category candidates. According to him, a conjoint reading of the second proviso to sub-section (1) of Section 3 and sub-sections (2) and (5) of the said Section makes it abundantly clear that so long as the reservation does not exceed 50 per cent of the cadre D strength, the general category candidates can have no objection in the special recruitment undertaken in order to complete the 100 points roster. According to the learned counsel, the Division Bench has misconstrued Section 3 in concluding that the action of the State Government in treating 367 vacancies as backlog was legally not justified. E 12. Making a reference to the letter dated 4th July, 2006, it was submitted by Mr. Dwivedi that the State has endeavoured to achieve the object of the reservation without prejudicing the claim of the general category candidates. He pointed out that F out of the total sanctioned strength of the cadre of 4127 posts, 50 per cent for general category would be 2066 posts. Out of that share, the general category already occupied 1808 posts leaving a balance of 260 posts which were available to be filled up for general category. Under the earlier advertisement dated G 22nd of December, 2000, the break up of the vacancies was as under: (i) No. of vacancies 954 (ii) Posts for Scheduled Castes 200 H STATE OF U.P. AND ORS. v. SANGAM NATH 1213 PANDEY AND ORS. [SURINDER SINGH NIJJAR, J.] (iii) Posts for Scheduled Tribes (iv) Posts for 0.8.C. (v) General Category 20 257 477 A This would have been in excess of 50 per cent which is B impermissible under the law settled by this Court in the case of Indra Sawhney (supra), and R.K. Sabharwal & Ors Vs. State of Punjab & Ors. 2. According to him, it would also be contrary to the provisions contained under Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, c Scheduled Tribes and Other Backward Classes) Act 1994 as amended by Act No. 1 of 2002. The total number of vacancies were reduced to 887 out of which 520 earmarked for general recruitment to ensure that the general category gets 260 vacancies i.e. 50 per cent of the total available vacancies in D the cadre. Remaining 367 vacancies were treate1d as backlog vacancies for the reserved categories. Merely because the vacancies were not advertised would not render the action of the State Government illegal. Mr. Dwivedi also submits that all the appellants having participated in the selection process E cannot be permitted to challenge the same merely because they have remained unsuccessful. This apart, no relief could have been given to the appellants as the selected candidates have not been made parties. 13. On the other hand, Mr. Francis appearing for the F respondents submits that by excluding 367 vacancies and earmarking the same for special recruitment, the State of U.P. has infringed the 50 per cent rule in the year of recruitment as well as in the cadre. Laying considerable stress on the second proviso to Section 3 of the Amendment Act, 2002, he has G submitted that the total reservation for all categories of persons cannot exceed in any year of recruitment 50 per cent of the tqtal vacancies of that year as also 50 per cent of the cadre strength of the service to which the recruitment is to be made. On the 2. (1995) 2 sec 745. H 1214 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R. A basis of the calculation made by the State and by excluding 367 posts as backlog, the State has reduced the strength of the percentage meant for the general recruitll'lent category. The recruitment of the reserved category has gone up to 71 per cent as against 50 per cent. According to the learned counsel, the B interpretation placed on the statutory provisions by the Division Bench is in accordance with the law declared by this Court in Indra Sawhney and R.K. Sabharwal's case (supra). It is also in accordance with the law settled by this Court in the case of M. Nagaraja Vs. Union of lndia3 and Ramesh Kumar Vs. High C Court of De/hi4. According to the learned counsel, the Division Bench merely directed the State Government to follow the mandate of the statue as well as the law declared by this Court by directing the State to declare the result afresh in respect of 367 vacancies by not treating them as backlog vacancies and thereafter to offer appointments in terms of the roster provided D under notification dated 25th May, 2002. 14. We have considered the submissions made by the learned counsel for the parties. The entire controversy in this case centres around the decision of the State Government to E treat the unfilled vacancies undoubtedly falling to the share of the reserved categories as backlog vacancies. 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, F Scheduled Tribes and Other Backward Classes) Act 1994 as G amended by the Act No.