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TMI Blog2009 (4) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... t petitions. The facts of the leading writ petition are; the petitioners of the writ petition who are four in numbers claim to be duly qualified for appointment on the post of Lecturer in Graduate/Post Graduate Colleges in the State of U.P., have challenged the advertisement No. 37 dated 9.7.2003 published on 16.7.2003 and have also prayed for quashing the Government orders dated 3.7.2003 and 17.4.2003. By advertisement No. 37, the U.P. Higher Education Service Commission has advertised 838 posts of Lecturers in different subjects in various Post Graduates/Graduate Colleges in the State of U.P. by special recruitment to fill up the carry forward and backlog vacancies of reserved categories candidates. All the posts in different subjects have been shown to be reserved for Scheduled Castes, Schedule Tribes and Other Backward Classes. The advertisement mentions number of vacancies in different subjects. The applications have been called separately for different subjects. The advertisement further mentions that guidelines and list of the colleges shall be made available alongwith the application form. The Government order dated 3.7.2002 was issued for filling up the backlog vacancies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation as provided in U.P. Act No. 4 of 1994 ; (v) issue a writ, order or direction in the nature of mandamus commanding the respondents not to treat the vacancies that have occurred in the year preceding the year of recruitment as reserved posts. 4. This Court on 15.7.2005, passed an order directing the standing counsel to produce the record and also to file counter-affidavit giving break up of the vacancies and how these vacancies have been clubbed. Again on 18.7.2005, this Court directed the Secretary, Higher Education U.P. to file his personal affidavit, disclosing all material facts and the manner in which the State proposes to implement the Reservation Act qua the posts of Lecturers in recognized and aided degree colleges. This Court directed that affidavit must also disclose that as to how post of Lecturers in a particular subject available in all the recognized and aided degree colleges of the State could be taken as a unit for the purposes of working out the percentage of reservation provided for reserved categories. 5. A detailed counter-affidavit after the order of this Court dated 15.7.2007 was filed on behalf of State respondents sworn by Dr. Nakachhed Ram dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition No. 55910 of 2008, again a prayer has been made for quashing the advertisement No. 41 dated 7.2.2007. Writ Petition No. 6162 of 2006 is a writ petition filed by a candidate belonging to reserved category, who has stated that interview letter dated 10.7.2005 has been issued in pursuance of his application against advertisement No. 37. The petitioner has prayed for a writ of mandamus, commanding the respondents to declare the result of subject Geography pursuant to advertisement dated 9.7.2003. The Writ Petition No. 5632 of 2007 is again a writ petition by a candidate belonging to Other Backward Class who has appeared in the interview in pursuance of his application against advertisement No. 37. A mandamus has been sought for declaring the result of selection in pursuance of advertisement No. 37. Writ Petition No. 15963 of 2008 is again a writ petition filed by a candidate belonging to reserved category, who has appeared in the interview in pursuance of the advertisement No. 37 against the subject history. The petitioner has prayed for a mandamus directing the respondents to declare the result of interview held on 27.7.2005 with respect to subject history against advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned by the Director of Higher Education subjectwise, separately for each institution. There is no common cadre of Lecturer throughout the State. 8. Learned Additional Advocate General, Sri Jaideep Mathur refuting the submission of learned Counsel for the petitioners submitted that U.P. Higher Education Service Commission Act, 1980 after its amendment now permits consolidation of vacancies of all the Lecturers in different colleges thus, after the amendment in Section 12 (3) consolidated vacancies have to be treated as one unit for applying the reservation. Before 1992 Amendment in 1980 Act, college was a unit but situation has changed subsequent to the amendment made in the year 1992 in the 1980 Act. The college is to now send the intimation of vacancies to the Director of Higher Education, who has been permitted to consolidate the vacancies. Sections 12 and 13 of the Act, if read together make it clear that reservation is to apply on consolidated vacancies. It is submitted that by virtue of Section 2 (c) (iv) of 1994 Act, the post of Lecturers in different colleges are covered by definition "Public services and posts". Hence, the reservation is applicable on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sues arise for consideration in this writ petition which are necessary to be decided for effectively deciding all the writ petitions. (i) Whether 467 vacancies, which were available because of retirement, resignation and death upto 30.6.2003, could have been included and reserved for Scheduled Castes, Schedule Tribes, Other Backward Classes only alongwith 371 carry forward vacancies in advertisement No. 37 of 2003? (ii) Whether 467 vacancies were rightly reserved only for Scheduled Castes, Schedule Tribes, Other Backward Classes without they having been earlier advertised or offered to General Category candidates? (iii) What is a unit for applying the Rules of Reservation according to 1994 Act and the roster framed thereunder? (iv) Whether the reservation is to be applied by consolidating all the vacancies of the Lecturers in different degree colleges / postgraduate colleges? (v) Whether in case, each college is treated to be a separate unit, the reservation is to be applied by clubbing all the sanctioned posts of Lecturers in a college or the reservation and roster are to be applied subjectwise? (vi) Whether advertisement No. 37 is in accordance with 1994 Act and wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in person before this Court on 18.7.2005 and show cause as to why they neither filing the counter-affidavit nor producing the records. List/put up on 18.7.2005. 14. In the counter-affidavit dated 17.10.2005, the details pertaining to 838 vacancies have been mentioned. It is the case of the respondents that 838 vacancies which have been advertised include following: (a) 371 carry forward vacancies of advertisement No. 29 which could not be filled up because of non-availability of suitable candidate. (b) The vacancies available because of retirement, resignation and death upto 30.6.2003. 15. Paragraph 14 of the counter-affidavit, which in categorical terms put forward the stand of the State respondents pertaining to vacancies is to the following effect: 14. That after issuance of U.P. Public Service (Reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes) (Amendment) Ordinances on 6.6.2002 which was incorporated into the Reservation Act, 1994 on 31.8.2002. The State Government vide Government orders dated 3.7.2002, 4.7.2002 and 17.4.2003 (Annexures-21, 22 and 23) respectively of the writ petition with a view to complete the backlog directed to fill t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 SC 179, (majority opinion) does. Mudholkar, J. speaking for the majority says: We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. On the other hand is the approach adopted by Ray, C.J. in Thomas MANU/SC/0479/1975. While not disputing the correctness of the 50% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, C.J. would not be consistent with Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court, 1994 Act was enacted in the year 1994. Section 3 (4) of the 1994 Act provided that vacancies reserved if remains unfilled even after special recruitment, it may be carried over to the next year subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in Sub-section (1) shall not exceed fifty per cent of the total vacancies. 1994 Act was amended by U.P. Act No. 1 of 2002 by which Sub-section (2) was substituted in following manner: (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 Sub-section (1). 19. In view of Section 3 (2) as quoted above, the carry forward vacanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question fell for consideration before a Division Bench in context of 1994 Act in the case of Dr. Shashi Kant Rai and Ors. v. State of U.P. and Ors. MANU/UP/0434/1998 : 1998 (3) AWC 1821. In Shashi Kant Rai's case two advertisements were issued, one advertisement No. 3 of 1996 inviting applications for 47 posts of Medical Officers (Ayurvedic) out of which 42 posts were reserved for Scheduled Castes and 5 posts for Scheduled Tribes. Another advertisement was issued being Advertisement No. 1 of 1997, inviting applications for 433 posts of Medical Officers (Ayurvedic) out of which 389 posts were reserved for Scheduled Castes and 44 for Scheduled Tribes. Both the aforesaid advertisements were challenged by the candidates belonging to General Category. The Division Bench of this Court held that advertisement are bad in law, which advertisement provided for 100% reservation. The advertisement offend the provisions of 1994 Act and also equality clause contained under Articles 14 - 16 of the Constitution of India. Following was laid down in paragraphs 10 and 14 of the aforesaid judgment: 10. From perusal of subsections (2), (3) and (4) of Section 3 of the Act, it is apparent that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory to participate, reserving all 467 vacancies for reserved categories candidates is impermissible. The State has done exactly what was disapproved by the Apex Court in Indira Sawhney's case in paragraph 814 as quoted above. If the State is permitted to fill up all the vacancies coming into existence by reserved categories candidate, the channel of recruitment for General Category shall stand choked and the candidates of General Category shall have no opportunity to participate in any recruitment although substantive vacancies had arisen in which they have right to participate. The stand taken by the respondents in clubbing 467 vacancies alongwith carried forward vacancies of 371 and reserving all for reserved category candidates violates rights of petitioners under Articles 14 and 16(1) of the Constitution of India. 21. A Full Bench of Karnataka High Court in the case of Dr. Rajkumar and Ors. v. Gulbarga University and Ors. MANU/KA/0056/1990 : AIR 1990 Kar 320, had occasion to consider similar issue. The Gulbarga University invited applications for selection of 35 teaching posts out of which 33 were reserved in favour of persons belonging to Backward Classes. The recruitm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 16 (4) only authorises the reservation of posts in favour of the Scheduled Castes and Scheduled Tribes consistently with the maintenance of efficiency of administration. The prescription of reasonable rules with the qualification and standard for the employment or the appointment is not prohibited by Article 16(1) or 16(2). But it must be common to all citizens consistent with the doctrine of equality of opportunity. It may be relevant to remember General Manager v. Rangachari MANU/SC/0388/1961 : AIR 1962 SC 36 at 41 "that Article 16 (1) and (2) really gives effect to the equality before law, guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other." If different standards are prescribed under the rules for different classes, then it would plainly run counter to the doctrine of equality before law and would be inconsistent with equality of opportunity in matters relating to employment or appointment as guaranteed under Article (1). From the ratio of the above decision, it follows that the reservation provided under Clause (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tegory candidates have right to participate. It was, however, open for the State to determine the reserved vacancies out of 467 vacancies and proceed to advertise the same for both general and reserved category candidates in accordance with 1994 Act. Thus, it is held that advertising 467 vacancies were not backlog vacancies and could not have been reserved solely for the Scheduled Castes candidates and inclusion of the said vacancies in the special drive for filling the backlog of Scheduled Castes, Schedule Tribes and Other Backward Classes is impermissible and violates rights under Articles 14 and 16(1) of the Constitution of India. 23. Question Nos. 3, 4 and 5 being inter-related, are being considered together. Before we proceed to examine the respective contentions of the parties on the above questions, it is necessary to have a look over the statutory provisions governing the filling of the posts in post graduate and graduate colleges of the State. The U.P. State Universities Act, 1973 has been enacted to amend and consolidate the law relating to certain Universities. Section 2 (2) of the 1973 Act defines 'affiliated college'. The recruitment of the teachers of the Deg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leges. Proviso to Section 12 (4) requires that Commission shall give wide publicity to the vacancies notified to it under Sub-section (3). Second proviso requires a candidate to indicate their order of preference for the various colleges vacancies wherein have been advertised. Section 30 of the Act, provides that provisions of the Act shall have effect notwithstanding anything to the contrary contained in the U.P. State Universities Act, 1973 or the Statutes or Ordinances made thereunder. In exercise of powers under Section 32 of the 1980 Act, the U.P. Higher Education Services Commission Rules, 1981 has been framed. Part III of the Rules provides procedure for recruitment. Rules 7 and 8 of the 1981 Rules, which are relevant are quoted herein below: 7. Intimation of vacancies (Section 32).-The management of the college shall so far as practicable determine and intimate to the Commission in Form I the number of vacancies to be filled in by recruitment during the course of the year by May 31 each year. 8. Publicity (Sections 12 (3) and 32).-Advertisement of the vacancies in three issues of each of any three leading newspapers having adequate circulation in the State shall be deem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vacancy and the vacancy so notified shall be deemed to be notified by the Management. 5. Notification of vacancies submission of application and indication of preference.-The Commission shall advertise the vacancies in the three issues of at least three newspapers. The Commission shall send a copy of the advertisement to the Director and may, if it considers proper, also send a copy thereof to the District Inspector of Schools and to the Colleges. Such advertisement shall, inter alia, indicate the total number of vacancies as also the number of vacancies in women's colleges and other colleges separately, the names of the college (s) and where they are situate and shall require the candidates to apply in prescribed form and to give if he so desires, the choice of not more than five colleges in order of preference. Where a candidate wishes to be considered for a particular college or colleges only, and for no other, he shall mention the fact in his application: Provided that where the number of colleges is large or for any other reason the Commission considers it inexpedient, it may, instead of mentioning the names and particulars of the colleges in the advertisement, sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcentage of reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens. Section 3 as amended upto date quoted herein below: 3. (1) In Public services and posts, there shall be reserved at the stage of 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 persons belonging to Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens,- (a) in the case of Scheduled Castes Twenty-one per cent (b) in the case of Scheduled Tribes Two per cent; (c) in the case of Other Backward Twenty-seven per cent; Classes of citizens 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to be noticed that with regard to intimation of reserved category vacancies to the Director and Commission, there is no specific provision in 1980 Act, Rules and Regulations framed thereunder but 1994 Act, being applicable, the requirement of 1994 Act, has to be fulfilled and all necessary and consequential actions have to be taken by the authorities entrusted to carry on recruitment in accordance with the objective and purpose of 1994 Act. As quoted above, column No. 7 of the Form of Appendix to the U.P. Higher Education Services Commission Rules, 1981 provide a column for any other requirement or conditions not covered by any other column. 1994 Act having been enforced, the requirement of giving details for determining as to whether the vacancies which have arisen have to be filled by candidates of Scheduled Castes, Schedule Tribes and Other Backward Classes category candidates, is now mandatory requirement and thus, the management is required to give the details regarding applicability of reservation as per 1994 Act and roster points in their intimation. Sub-regulation (3) of Regulation 4 of 1983 Regulations specifically provide that where the management has failed to notify t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint roster one by one in continuation on entire consolidated vacancies. The method can be explained through the following example: Example.-Total pooled vacancies subjectwise: Arthashastra (Economics) - 37 Angraezi (English) - 39 Urdu- 08 Hindi- 15 Ganit (Maths) - 20 Rasayan (Chemistry) - 16 Bhugol (Geography) - 17 Consolidated vacancies- 152 Now the roster has to be applied on entire 152 vacancies. In Hindi alphabetical order the aforesaid subjects shall be put in the following order: 1. Angarezi (English) - 39 2. Arthashastra (Economics) - 37 3. Urdu- 08 4. Ganit (Maths) - 20 5. Bhugol (Geography)- 17 6. Rasayan (Chemistry) - 16 7. Hindi- 15 Now first of all 39 vacancies of Angarezi (English) shall be put in 100 point roster and number of reserved category vacancies shall be worked out. Then 37 vacancies of Arthashastra (Economics) shall be put in roster from the 40th point in roster upto 76th point in continuation and the number of vacancies falling in reserved category shall be worked out. Then in order to work out reserved vacancy categorywise in Urdu, from 77th point to 84th place in roster same process shall be applied. Then for 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are of the view that the stand of the respondents is not well founded. Under Section 10 of the Principal Act, the Management is required to intimate the number of vacancies to be filled by way of selection by direct recruitment. While doing so, the Management is also required to intimate the number of vacancies to be reserved for the candidates belonging to Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens in accordance with the 1994 Act. However, Section 10 expressly excludes the post of the Principal from the purview of the 1994 Act. Thus, from a plain reading of the said provision, the intention of the Legislature is manifestly clear. The Legislature, in its own wisdom did not think it proper to provide for any reservation under the 1994 Act for the post of head of the institution. Indubitably, there is no challenge to the validity of Section 10 of the Principal Act. Moreover, the post of the Principal in an educational institution being in a single post cadre, in the light of the clear dictum laid down by this Court, such a post cannot be subjected to reservation. It will result in 100 per cent reservation, which is not permissible in terms of Articles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to be reserved categorywise but not subjectwise. For example against the 13 posts of Professors, it was mentioned that three posts for Scheduled Castes, 2 posts for Schedule Tribes shall be reserved. Similarly against 35 posts of Lecturers, it was mentioned that 7 posts for Scheduled Castes and 5 posts for Schedule Tribes shall be reserved. The said notice was challenged in the High Court. One of the questions before the High Court as to whether the reservation ought to have been subject-wise in the employment notice came for consideration. There being conflicting views of the two Division Benches, the matter was referred to the Full Bench by the High Court. The Full Bench held that reservation as made in the advertisement was against the reservation policy. Appeal was filed in the Apex Court against Full Bench judgment of High Court. The Apex Court laid down following in paragraph 7: 7. ...According to us, the word "post" used in the context has a relation to the faculty discipline, or the subject for which it is created. When, therefore, reservations are required to be made "in posts", the reservations have to be postwise, i.e., subjectwise. The mere anno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the teachers are also made subjectwise and the teachers of one department cannot be treated as teachers of the other department, all the posts of the teachers of the University cannot be clubbed together categorywise for applying the reservation. Each department of teaching is a separate unit. Therefore, reservation has to be applied subjectwise. This will ensure reservation in all categories of teachers in all subjects departments. If the reservation is not applied subjectwise, it will result in violation of Article 16 of the Constitution. If all the Professors working in all the subjects in the University are treated as belonging to one unit, the result would be that in some subjects there will be no reservation while in others there might be hundred per cent reservation. Uncertainty and serious consequences including the violation of Article 16 of the Constitution, as highlighted by the Supreme Court in Dr. Suresh Chandra Verma v. Chancellor MANU/SC/0351/1990 : AIR 1990 SC 2023 (supra) are bound to occur. Nor the reasons given above, the impugned order cannot be sustained. 37. The Government order dated 19.4.1995, which had directed for clubbing of all the posts of Lectu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal and permissible. The Vice-Chancellor should apply the rule of rotation and the roster as envisaged under Sub-section (5) of Section 3. The advertisements are required to be issued so that the reserved and the general candidates would apply for consideration of their claims for recruitment in accordance therewith. This interpretation would subserve and elongate constitutional objective " and public policy of socioeconomic justice serving adequacy of representation in a service or posts, grade or cadre as mandated and envisaged in Articles 335 and 16(4) read with Articles 14 and 16(1), Preamble, Article 38 and Article 46 of the Constitution and all other cognate provisions. 38. The judgment of the High Court quashing the advertisement was maintained and it was directed that fresh advertisement shall be issued. Another decision, which is relevant in this context is the judgment in the case of Dr. Ram Niwas Pandey v. State of U.P. and Ors. (1996) 3 UPLBEC 1869. In the said case Lucknow University invited applications for different post of Professors existing in different Departments by advertisement No. 5 of 1993. One of the grounds for challenge of the advertisement was tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Allahabad High Court in Ram Niwas Pandey (Dr.) v. State of U.P., was assailed before this Court. But this Court being of the opinion that no exception can be taken to the judgment, did not entertain the special leave petition. The very advertisement of the University which had been issued in the year 1995 and was the subject-matter of challenge before the Allahabad High Court in the impugned judgment, had also come up for consideration before this Court in State of U.P. v. Dr. Dina Nath Shukla. A Bench of two learned Judges of this Court construed the provisions of the Reservation Act and also the provision of the University statute and came to hold that it would not be permissible to club all posts of Professors together and then apply the principle of reservation. It was felt that if the total posts are advertised without subjectwise specification in every faculty, discipline, speciality or superspeciality, it would be difficult for the candidate to know as to which of the posts would be available either to the general or reserved candidates or whether or not they fulfil or qualify the requirements so as to apply for a particular post and seek selection. Necessarily therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vation has been applied clubbing all the posts of Lecturers of different colleges in the State of U.P. The stand taken by the respondents that roster is applied on consolidated vacancies on subject-wise is not in accord with the ratio laid down by the Apex Court in the aforesaid cases. In paragraph 11 of the said affidavit, the manner of applicability of 100 points roster has also explained. It has been stated in paragraph 11 that on consolidated subjectwise vacancies, the roster is applied in continuation from one subject to another subject. Illustrated stand of the State Government, which has been stated in paragraph 11 is that 39 vacancies of English which are consolidated vacancies in different colleges have to be put on roster and thereafter the vacancies of another subject in alphabetical order shall occupy the next point in the roster. The post of Lecturers in different subjects in different colleges may carry the same scale pay but that is neither the reason nor ground for clubbing various posts of a subject in different colleges or vacancies in different subjects in the same college. The subject-wise vacancies in a college form a separate unit for applying the rules of res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 335, namely, the maintenance of efficiency of administration. Para 2.4 provides that the reservations will be applied to each grade or post separately but isolated posts will be grouped as provided in Chapter VI. Paragraph 6.1 of Chapter VI which is relevant for our purposes, states that in the case where the posts are filled by direct recruitment, isolated individual posts and small cadres may be grouped with posts in the same class for purpose of reservation, taking into account the status, salary and qualifications prescribed for the posts in question.' For this purpose, it provides that a cadre or a grade or a division of a service consisting of less than 20 posts may be treated as a small cadre. A group so formed should not ordinarily consist of 25 posts. It then adds: It is not intended that isolated posts should be grouped together only with other isolated posts." That precisely is the situation here. The Government of India instructions clearly show that there can be no grouping of one or more isolated posts for purposes of reservation. To illustrate, Professors in medical colleges are carried on the same grade or scale of pay but the posts of Professor of Cardio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties or carry the same responsibilities or draw the same pay. The posts of the Director and those of the Deputy Directors constitute different cadres of the service. The first vacancy in the cadre of the Deputy Directors was that of the Deputy Director (Homeopathic) and it had to be treated as unreserved, the second reserved and the third unreserved. Therefore, for the first vacancy of the Deputy Director (Homeopathic), a candidate belonging to the Scheduled Caste had, therefore, to compete with others. Relying on the decision in Balaji's case MANU/SC/0080/1962, it was held in Chakradhar's case that once the power to make reservation in favour of Scheduled Castes and Scheduled Tribes is exercised, it must necessarily follow that for the purpose of vacancies for which reservation has been made, must be brought into effect and in order to do full justice, a carry-forward rule must be so applied that in any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inviting applications for the post of Readers and Lecturers in various subjects in the University. Following was laid down by the Division Bench: With these pronouncement of Supreme Court the law in respect of the applicability of rules of reservation to the teaching posts in University is fairly well-settled. The State Government, however, by an apparent misreading of the judgment in M. C. Chattopadhyaya's case issued a Government order dated 1st August, 2003 providing that where there is single post of Professor, the rules of reservation will not be applicable to it treating it to be one unit but when in para 4 of the same Government order dated 1st August, 2003 it is stated that for applicability of the roster of the year 1994 of the Reservation Act all the posts of Lecturers and Readers in the University shall be taken to be a single cadre. It was in pursuance of this Government order that the impugned advertisement dated 9th August, 2006 was issued by the Gorakhpur University ignoring the ratio in M. C. Chattopadhyaya's case, and to the extent it departed from Dr. Dina Nath Shukla's case. The Division Bench held the advertisement of the University not conformin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Higher Education quoted above and in alternative in case, each college is treated to be a separate unit, the post of all the Lecturers have to be clubbed together and reservation has to be applied thereafter. Sri P. S. Baghel, learned Counsel for the petitioners has also placed reliance on a Government order dated 1.8.2003 by which Government order, the State Government has laid down methodology for applying the roster in different posts of lecturers in a University. Sri Baghel submitted that the principles laid down in the aforesaid Government order for applicability of the roster, i.e., taking the subject in a descending order has to be followed. Learned Additional Advocate General submitted that the Government order dated 1.8.2003 has been issued only for the University and is not applicable with regard to determination of methodology for reservation in degree/posts graduate colleges. As observed above, there is no provision in the U.P. Higher Education Service Commission Act, 1980, Rules and Regulations framed thereunder with regard to reservation nor even after enforcement of 1994 Act, any amendment has been made in the Higher Education Act regarding reservation. The U.P. Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to be a unit, all the posts of Lecturers in a college have to be clubbed together and reservation has to be applied as is being applied in the Secondary institutions governed by the provisions of U.P. Secondary Education Services Selection Board Act, 1982. For coming to a correct conclusion, it has to be first found out as to whether concept of Faculty, department and subject is also present in Degree Colleges or post graduate colleges as it exists in a University. 46. Section 27 of the U.P. State Universities Act, 1973 provides for the Faculties, Section 27 (2) provides that each Faculty shall comprise such departments of teaching as may be prescribed. Section 27 also contemplates Board of each Faculty and also Dean of each Faculty. In each department of teaching in the University there shall be a Head of Department to be appointed according to Statute. Section 27 (1) (2) (3) and (4) are quoted herein below: 27. The faculties-(1) The University shall have such faculties as may be prescribed. (2) Each faculty shall comprise such departments of teaching as may be prescribed and each department shall have such subjects of study as may be assigned to it by the Ordinance. (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g categories: (a) Professors in Universities ; (b) Present or retired Principals of Postgraduate colleges ; (c) Directors of Research Institutes or in the case of Medical Faculty, the Civil Surgeon of Agra ; Provided that at least four of the above persons shall belong to category (a) and (c). (2) The teachers under items (ii) and (iii) and (iv) of Clause (1) shall be chosen by rotation in order of seniority. 48. Statute 7.03 deals with the Board of the Faculty of Commerce, Statutes 7.04 deals with Faculty of Engineering, 7.05 Faculty of Law, 7.06 Faculty of Education, 7.06A Faculty of Home Science, 7.06, 7.06B Faculty of Homeopathic Medicine. Statute 6.06C provides for Board of the Faculty of Fine Arts. Statute 7.03 which deals with Faculty of Commerce is being quoted herein below: 7.03. The Board of the Faculty of Commerce shall be constituted as follows: (i) The Dean of the Faculty, who shall be the Chairman. (ii) Five teachers of the subject who shall be either Principals or the senior most teachers of post-graduate department by rotation in order of seniority from among teachers of affiliated colleges. (iii) Three teachers teaching post-graduate classes othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, the concept of different subjects, teachers appointed in different subjects and different departments are very much present in the Statute qua the degree college and post graduate college. 50. There are other provisions under the First Statutes which clearly contemplate different faculties in a college. Chapter XII of the Statutes deals with "Affiliated Colleges". Statutes 12.06 contemplate application for affiliation in different faculties including Commerce, Education, Law, Science etc. Statute 12.06 also contemplate affiliation in different subjects also. Statute 12.11 is quoted herein below: 12.11. Every application from an affiliated college for starting courses of instructions for a new degree or in view subjects shall be made so as to reach the Registrar before the 15th August of the year preceding the one in which it is proposed to start such courses. 51. The above provisions thus, clearly indicate affiliation facultywise and subjectwise. Like wise Statute contains the provisions of determination of seniority of teachers of the University as well as teachers of the affiliated colleges. Statute 17.02 contemplates maintenance of seniority list in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate college but the rules of reservation have been made applicable by virtue of 1994 Act itself. In the intermediate colleges governed by U.P. Act No. 5 of 1982, there are specific statutory provisions which make the rules of reservation applicable. The 1982 Act and 1998 Rules specifically refer to applicability of provisions of 1994 Act and selection and reservation in the intermediate colleges is done in accordance with the procedure prescribed thereunder. Rule 10 of the U.P. Secondary Education Services Selection Board Rules, 1998 refers to source of recruitment of "teachers of Lecturer's grade" as 50% by direct recruitment and 50% by promotion. The other provisions of 1998 Rules also indicate applicability of reservation in Lecturer's grade which means applicability of reservation on all posts of lecturers together which is referred to as lecturer's grade. Rule 12 (6) again specifically refers to applicability of reservation on the post of teachers in Lecturer's grade, Rule 12 (6) is extracted below: 12 (6) The Board, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the posts of Lecturers in degree colleges/post graduate colleges carry the same scale of pay and are under one management with more or less same duties and responsibilities all the posts fall in one cadre, there cannot be different cadres for different subjects. As noted above, the post are created by Director of Higher Education in a college subjectwise. For qualification for appointment of Lecturers in a degree college different qualifications are prescribed in Statutes framed under the U.P. State Universities Act, 1973. The post of one department is not interchangeable with another department. A common seniority list of all the Lecturers in a college is maintained for utilising it for different purposes as laid down in the Statute of University. When two Lecturers are appointed in one department or in one subject by same selection committee their inter se seniority in the department is contemplated and worked out. There is no doubt that post of Lecturers are the posts which are covered by definition of public services and costs as given in Section 2 (c) of 1994 Act. Thus, all the post of Lecturers of a degree colleges and post graduate colleges are covered by 1994 Act. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires a qualification for appointment in one particular subject has right to participate in the selection only against the said subject. Not applying the reservation subject-wise, will lead to uncertainty and violation of the rights under Articles 14 and 16 of the Constitution of India. The Division Bench of our Court in the case of Dr. Dina Nath Shukla v. State of U.P. and Anr. 1996 ALJ 1579 : 1996 (3) AWC 1495, have laid down in paragraph 8, quoted above, that subjectwise reservation if not applied, uncertainty and serious consequences including violation of Article 16 of the Constitution of India shall be the result. Thus, the submission that provisions of .1994 Act shall be frustrated by accepting the submission of learned Counsel for the petitioner, cannot be accepted. 1994 Act is fully applicable in the post of Lecturers in a college and its full effect shall be given but while applying the reservation, collegewise subjectwise unit is to be followed in view of the law laid down by the Apex Court in the above mentioned judgments. 59. A very recent judgment of the Apex Court in the case of State of Karnataka v. K. Govindappa and Anr. MANU/SC/8292/2008 : (2009) 1 SCC 1, has agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who formed a cadre and each discipline which consisted of a single post of Lecturer did not constitute a separate cadre in respect of the said discipline as otherwise without applying the principle of roster rotation, the said single post would always have to be filled up from amongst general candidates and a Scheduled Caste 6r Scheduled Tribe candidate would always have to compete against general candidate for such purpose would destroy and/or negate the very object and purpose of Article 16(4) of the Constitution. 10. Mr. Hegde submitted that all the posts of Lecturers, irrespective of the subjects taught, were treated by the college as one cadre for purpose of maintaining the roster system for reservation of posts. However, by applying the ratio in Chakradhar Paswan case (supra), the High Court had quite erroneously quashed the appointment of the respondent No. 1 as Lecturer in History which, according to the roster, had been reserved for a Scheduled Caste candidate. 11. It was next urged by Mr. Hegde that the expression "cadre" could not be equated with the expression "post" as defined in Fundamental Rules 9 and 4, nor could the expression "cadre& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the different disciplines taught in the college. 22. While there can be no difference of opinion that the expression "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of interchangeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution of India. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution. 24. In our view, the present case falls within the category of single isolated posts within a cadre in respect whereof the rule of reservation is inapplicable and the said principle has been correctly applied by the High Court in the facts of this case. As indicated by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes, Schedule Tribes and Other Backward Classes regarding admission in various course of study in the University. Section 28 (5) provides for reservation of seats for admissions in any course of study in University, Institute, constituent college, affiliated college or associated college. Section 28 (5) of 1973 Act is quoted as below: 28 (5) Notwithstanding anything contained in any other provision of this Act,- (a) reservation of seats for admission in any course of study in University, Institute, constituent college, affiliated college or associated college for the students belonging to the Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens may be made and regulated by such orders as the State Government may, by notification, make in that behalf: Provided that reservation under this clause shall not exceed fifty per cent of the total number of seats in any course of study: Provided that reservation under this clause shall not apply in the case of an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution: Provided also that the reservation under this clause shall not apply to the category o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reservation in admissions in favour of any other category of candidates than those referred to above, the candidate selected for admission on the basis of such reservation shall be placed in the appropriate category to which he belongs. For example, if a candidate, selected for admission to any course of study on the basis of reservation in favour of sports person, belongs to the Scheduled Castes, Schedule Tribes and Other Backward Classes, he will be placed in the respective category to which he belongs by making necessary adjustments and similarly, if he belongs to general category, he will be placed in that category after making necessary adjustment: Provided further that the seats, If any, reserved under any other law for the time being in force, or under any order of the Government of India, for the students belonging to any other State, shall not be included in the total number of seats for the purpose of computing the percentages under this paragraph. 65. The relevant word which has been used both in Section 28 (5) and Order, 1994 is percentage of reservation of seats in any course of study. Thus, the reservation contemplated in admission of the students relates to vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Shukla's case, which was departed only with regard to single post of Professor in M. C. Chattopadhyaya's case.... 67. As noticed above, the Lecturer in different subjects required to possess different qualifications as provided by the Statute of the University and the posts are not interchangeable. Different subjects in a college are in a different disciplines and post in a college is created subjectwise. Thus, it is held that neither all the posts of one subject in different colleges can be clubbed together for applying the rules of reservation nor all the post of Lecturers in one college can be grouped together for applying the reservation. The reservation according to 1994 Act and roster thereunder, is to be applied collegewise and subject-wise. 68. What is the minimum number of posts in a cadre for applicability of roster issued under Sub-section (5) of Section 3 of 1994 Act? The question No. 7 relates to the minimum number of posts in a cadre required for applicability of 100 points roster issued by the State Government in exercise of power under Sub-section (5) of Section 3 of 1994 Act. 69. As noticed above by earlier order of this Court dated 28.11.2007 passed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Physical Education there are only one sanctioned post. In foregoing discussions, we have already found that when there is only one post in a cadre, the said post cannot be held to be reserved and solitary post in a cadre has always to be treated as unreserved. This view has been reiterated by the Constitution Bench of Apex Court in the case of Post Graduate Institute of Medical Education (supra). Thus, there cannot be any difficulty with regard to single post in a cadre, which position is now well-settled. The question thus, remains when there is more than one post in a cadre. 70. The answer to the above issue has to be found out in the provisions of 1994 Act, which has been enacted to provide reservation in Public Services and Posts in favour of Scheduled Castes, Schedule Tribes and Other Backward Class citizens. Section 3 (1) mandates that "there shall be reserved at the stage of direct recruitment, the following percentage of vacancies..." Different percentage of vacancies for backward class have been mentioned in Sub-section (1) of Section 3. The Sub-section (1) next mentions that "..recruitment are to be made in accordance with the roster referred to in Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Castes. 2. Unreserved. 3. Other Backward Class. 4. Unreserved. 5. Scheduled Castes.. 6. Unreserved. 7. Other Backward Class. 8. Unreserved. 9. Other Backward Class. 10. Unreserved. 100. Unreserved. 71. Although first point is reserved for Scheduled Castes but there is no dispute that if there is a single post cadre that has to be treated to be unreserved and in that context, the roster will be inapplicable. Now taking the example of two posts cadre, if out of 2 posts, even one post is reserved for Scheduled Castes of Other Backward Class, there will be reservation of 50% either for Scheduled Castes or Other Backward Class. The reservation for Scheduled Castes and Other Backward Class being respectively 21% and 27%, if one post is filled by Scheduled Castes, then 50% posts have to be treated to be filled by Scheduled Castes hence, out of 2 posts cadre one post can neither be reserved for Scheduled Castes or Other Backward Classes since in either case, the reservation for that category be 50% which is contrary to Sub-section (1) of Section 3. A Division Bench of our Court has occasion to consider the applicability of reservation when there are only two posts in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means the total number of posts available in a cadre and from such available post certain percentage is reserved for Scheduled Castes and Scheduled Tribes and O.B.C. category candidates in view of the provisions contained in Sub-section (1) of Section 3. 73. The Division Bench held that reservation for Scheduled Castes which is prescribed as 21% under Section 3 (1) of 1994 Act, cannot exceed. Considering the roster points as prescribed by notification dated 25.6.2002, the Division Bench held that following the Supreme Court judgment in R. S. Garg case (supra) that in the event of conflict between reservation and roster, the former shall prevail. Paragraphs 86, 94 and 121 being relevant are quoted below: 86. Needless to say that keeping in view the letter and spirit of the Articles 15 and 16, the reservation is to be provided to respective quotas of various categories. The State does not have got right to travel beyond respective quotas of categories. No reservation can be provided beyond 21% to S. C. candidates in view of Sub-section (1) of Section 3 of 1994 Act, hence it cannot be done by applying roster which is meant to enforce the reservation within respective quota of vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess or inadequacy of representation keeping in view the necessity and efficiency provided by Article 335 of the Constitution, the Government cannot travel beyond the outer limit of quota provided under Sub-section (1) of Section 3 of 1994 Act for S.C., S.T. and O.B.C., i.e., 21%, 2% and 27% respectively in the matter of promotion. (6) Any reservation made exceeding the outer limit provided under the 1994 Act or the Statutes, shall be deemed to be excessive reservation and the reservation so made, may be struck down by the Court as it would amount to derogation of constitutional requirement as held in M. Nagraj's case (supra). In the present case, since the sanctioned strength of the post of Engineer-in-Chief is two and the quota of Scheduled Castes is 21% under Sub-section (1) of Section 3 of the 1994 Act, one out of two posts cannot be reserved for Scheduled Caste. 74. Now example of 3 posts cadre is taken. If in 3 cadre posts, one post is reserved for Scheduled Castes that will be 33% reservation or one post is reserved for Other Backward Class that shall be again 33% reservation which is against the percentage prescribed under Sub-section (1) of Section 3. Now, example of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered opinion, does not meet the constitutional requirements. 8. Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it cannot be exceeded thereto. In the case in hand, one of the vacancy if treated to be reserved for Scheduled Castes candidates out of four vacancies, the reservation would come to 25% which would exceed the maximum extent of reservation prescribed for Scheduled Castes candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent No. 1 treating one post of the Lecturer reserved for Scheduled Castes in promotion quota, therefore, was illegal and has rightly been set aside by Hon'ble single Judge. 75. In 4 cadre posts, if one post is reserved for Scheduled Castes then reservation for Scheduled Castes be 25% which is impermissible. However, if one post is treated to be reserved for Other Backward Class then reservation for Other Backward Class shall be only 25%, i.e., within 27% as prescribed under Sub-section (1) of Section 3. Thus, out of four posts, one post can be validly res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter to the Public Service Commission as was required by Rule 5 (iii) of the 1992 Rules; (ii) The order of promotion passed in favour of the ' 3rd respondent was mala fide; (iii) The purported conversion of the post of Deputy Director of Factories (Chemical) to Deputy Director of Factories (Administration) being contrary to the 1992 Rules and having been done with a view to favour the 3rd respondent, was illegal ; (iv) The 3rd respondent was not eligible to be promoted, as he did not complete 5 years' substantive service on the date of selection, i.e., in the year 1997 in terms of Rule 5 (iii) ; (v) Reservation to the post in favour of a Scheduled Caste was illegal and unjust by reason thereof the percentage of reservation in promotion would be raised from 21% to 33%. (vi) The post of Deputy Director of Factories (Administration) has already been occupied by a candidate belonging to the reserved category. namely Shri Ghanshyam Singh. 76. The Apex Court also noticed the roster issued in 1994 Act and noticed that out of 6 posts, first and fourth posts shown to be reserved for Scheduled Castes. The Apex Court clearly held that such reservation was impermissible. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... didates ought to have been appointed. Paragraphs 2, 8 and 9 of the judgment of the Apex Court is quoted herein below: 2. The percentages of reservation, as applicable and as was actually applied, are set out in the following table: 8. It was submitted by the learned Counsel for the appellants that if this principle of rounding off is to be applied then the percentage of reservation in Schedule Tribe category would come to 2 by rounding off 1.86, to the nearest higher value, and in that case a candidate from Schedule Tribe category and not the respondent would be entitled to appointment. We cannot agree. No candidate in Schedule Tribe category has chosen to lay challenge to the selection. We are also not aware if there is any Schedule Tribe category candidate available and qualified for appointment consequent upon his having participated in the process of selection. This plea of the appellants is without any foundation and hence does not deserve to be taken note of. 9. There is yet another reason why the judgment of the High Court has to be maintained. The total number of vacancies was 93. Consequent upon the allocation of reservation and calculation done by the appellants, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een provided in statutory Rules under certain circumstances. There are certain factors which cannot be expressed in fraction hence, the Rule of rounding off has been applied as a Rule of necessity. The most common example is with regard to number of seats or posts when are required to be filled by different categories whose percentage is fixed like Rule of reservation for filling posts by candidates of Scheduled Castes, Scheduled Tribes, Other Backward Class and other categories. Certain percentage of seats are required to be filled up by Scheduled Castes candidates for example in the State of U.P. by U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Class) Act, 1994 provides that 21% posts are to be reserved at the stage of direct recruitment for the Scheduled Castes 2%, for Schedule Tribes 27% for Other Backward Class. The percentage of reservation qua the number of posts is often expressed in fraction. For example, if the posts are ten, 21% will be 2.1 and 27% will be 2.7, applying the principle of rounding off 2.1 shall be treated as 2 and 2.7 shall be treated as 3. This is because the number of posts cannot be expressed in fraction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n does not help the appellant in the present case. As observed above rounding up principle has been applied while determining the quota of seats or while determining the majority of votes. The said case relates to seats. Seats and posts cannot be expressed in fraction, hence, in this case fraction is rounded up but marks obtained by candidate in an examination can be expressed in fraction and when a particular merit is required as eligibility the principle of rounding up of less marks to the next higher percentage cannot be accepted. There is no principle that percentage of marks can only be expressed in round figure. Counsel for the appellant could not able to show any authority or Rule in support of his submission. 79. Thus, although principles of rounding off is applicable while computing the percentage of vacancies for allocation to reserve category candidates but such rounding off is to be conform to the statutory requirement of percentage of reservation as contained in Sub-section (3) of Section 1. In case rounding off exceed the percentage of reservation, the said rounding off cannot be resorted to. The percentage of reservation being fixed by Sub-section (3) of Section 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same time, it assures opportunities to all the open class category candidates. The implementation of the reservation policy should not lead to absurd result. The application of reservation percentage has to be with reference to the number of posts. It is always to be remembered that the reservation percentage is to be applied and the 50 point roster is to be followed taking into consideration the total number of posts in a cadre and at the same time care has to be taken that other category candidates are not prejudiced in the sense that the statutory recognised reservation percentage does not exceed while implementing the reservation policy. Undisputedly, the relevant rule requires 24% of reservation out of which 13% for the S.C., 7% for the S. T. and 4% for the D.T./N.T. Considering the 24% reservation, if one applies the 50 point roster, it would result in reservation in excess of the statutorily specified percentage. In a cadre comprising of three posts with 24%. It is settled law that the reservation cannot be allowed to exceed the percentage prescribed for reservation as it would result in injustice to the candidates falling outside the reservation category. Considering the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27.5.1988 by the Chief Secretary and 8.3.1999 by the Finance Commissioner while contending that those letters amount to amendment to the circular dated 9.2.1979. While rejecting the said contention, the Apex Court had held that: Unless the State Government completely gives up the policy of reservations, as enunciated in the earlier circular of 9.2.1979, it will not be possible to implement the latter decision. Mr. Rohtagi, learned Counsel appearing for the State Government was pointedly asked by us a question as to whether the Government had given up the policy of reservation enunciated in the circular of 9.2.1979. He fairly conceded that was not the case. However, he contended that when there are two posts, reservation policy enunciated earlier, cannot be implemented. When we pointed out to him that it is possible to implement it, and in fact it is to implement the policy that the roster was introduced, he had no answer. We are a little puzzled as to why the Chief Secretary and the Finance Commissioner should have in their letters in question stated that the reservation policy will not apply when there are only two posts available. It is obvious that none of them has appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in post is achieved. The roster point in a cadre can be filled in only when the vacancies occur and not otherwise. 83. We are also of the view that in Prabhash Chand Jain's case the issue which had arisen was not decided and the Full Bench of Bombay High Court has also noticed that the said case is not on the point which was up for consideration. 84. Learned Additional Advocate General could not refute the submission that there should be at least 5 posts for applicability of roster and reservation. When there are 5 posts in a cadre according to percentage prescribed under Section 3 (1) of 1994 Act, one post for Scheduled Castes, one post for Other Backward Class can be reserved and rest for general category. 85. In view of the foregoing discussions, we are of the view that in , a cadre which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of results with regard to carried forward vacancies shall cause prejudice to the rights of the reserved category candidates. Thus, the selection process with regard to carry forward vacancies which were advertised by advertisement No. 37, should come to its logical end. However, before concluding the process of declaration of result, the Director is required to satisfy himself regarding applicability of reservation on carry forward vacancies in view of the fact that the respondents have adopted an erroneous premise for applying the rules of reservation, as held above, the reservation has to be applied subject-wise, college-wise. Thus, to avoid any further complications and dispute, the Director has to re-check. We have also noticed that in the counter-affidavit dated 17.10.2005, the respondents have brought on record various information received from different colleges pertaining to number of vacancies in different subject with dates. A rejoinder-affidavit has been filed by the petitioners in which various information given in the said chart has been disputed by giving details. Due to this, although it is not necessary for this Court to enter into the aforesaid issues but this obl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng reservation and roster subjectwise and college-wise. The declaration shall be confined only to those vacancies which were carry forward vacancies and were advertised earlier by advertisement No. 29 and could not be filled up. The Director may determine on the basis of records available with him or may call for any other reports or record from management or any other competent authority. The candidates whose names are included in the select list shall be given option to give fresh choice of the colleges as required by the second proviso to Section 12 (4) which has become necessary in view of quashing the advertisement against 471 vacancies and direction issued by this order to the Director to redetermine the correct number of reserved vacancies out of carry forward vacancies against which select list is to be issued. The Director shall complete the aforesaid exercise within three months from the date of production of certified copy of this order and thereafter take appropriate steps for issuing recommendation for appointment in accordance with U.P. Higher Education Services Commission Act, 1980. (iii) The Director shall take steps for advertising 471 vacancies which were covere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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