This writ petition was initially filed seeking a direction to the respondents to consider the petitioner for appointment on the post of Assistant Public Relation Officer. Subsequently an amendment application was filed and the notification for recruitment of vacancies dated 01.01.2012 to 07.01.2012 was challenged. The amendment application was allowed by the order dated 21.01.2013.
The facts, which are not disputed in the writ petition, are that the total cadre strength of Assistant Public Relation Officer consists of six posts, out of which, four posts are reserved for direct recruitment quota and two are reserved for the promotee quota. This fact is also not disputed rather it is admitted in paragraph 5 of the counter affidavit filed by the respondents.
According to the petitioner he was duly qualified for the post of Assistant Public Relation Officer in the O.B.C. Category and he applied for recruitment against the vacancies which are advertised and selection conducted by the Electricity Service Commission on 20.05.2005. On being declared successful he was called for interview to be held on 20.08.2005. According to him the result was declared in the newspaper "Dainik Jagran" dated 18.02.2007 and the petitioner was declared successful. After declaration of result the name of the petitioner was duly recommended by the Commission for issuance of appointment letter but no appointment letter has been issued to the petitioner till date.
In the counter affidavit apart from admitting that the total cadre strength of Assistant Public Relation Officer consists of six posts, out of which, four posts were reserved for direct recruitment quota and two are reserved for the promotee quota. In para 5 of the counter affidavit a break up of the four posts has been given which is two posts for General Category, one post for Scheduled Caste Category and one post for O.B.C. Category. It is also stated that the selection in question was made for backlog post of direct recruitment, namely, two posts, one each for Scheduled Caste and one for OBC, however due to non-availability of posts belonging to OBC Category, the recommendation made to the Electricity Service Commission was cancelled by order dated 10.10.2007 and only one post reserved for Schedule Caste Category was operated.
I have heard Sri Naveen Sinha, learned counsel for the petitioner and Sri Amit Kumar Singh Bhadauria, learned counsel for the respondents and perused the documents on record.
The undisputed position is that the entire cadre strength of Assistant Public Relation Officer consists of six posts, out of which, four posts reserved are for direct recruitment quota and two are reserved for the promotee quota. The case of the respondents is that two posts in the backlog vacancies for Scheduled Caste Category and O.B.C. Category fell vacant and it is these backlog vacancies which were to be filled by direct recruitment. However, on scrutiny of vacancies, it was found that there was only one post available for the S.C. Category and there was no post in the O.B.C. Category therefore, the petitioner could not have been selected. Therefore, the recommendation to the Commission made earlier was cancelled.
In paragraph 5 of the counter affidavit the respondents have given a chart showing the categorywise strength of the posts of Assistant Public Relation Officer. A perusal of the same shows that out of the four posts in the direct recruitment quota, the working personnel are shown to be three General and one OBC while one post of Schedule Caste is vacant. In paragraph 7 of the Rejoinder Affidavit all that has been said by the petitioner is that there are six posts in all ignoring the fact that out of the six posts, four posts are to be filled by direct recruitment and remaining two posts by promotees. The petitioner has applied as a direct recruit candidate in the OBC category which is already filled and therefore the respondents did not operate the non-existing OBC vacancy.
However, the moot question which the respondents have not been able to answer that as to how they applied reservation against only four posts in the direct recruitment quota because if reservation is to be applied even for a S.C. Category then against the 21% vacancies no posts would be available for S.C. Category and there must be atleast five posts available before reservation can be applied. This controversy has already been settled by a Full Bench of this Court in the case of Heera Lal Vs. State of U.P. and others (Civil Misc. Writ Petition No. 51617 of 2009) reported in (2010) 6 ADJ 1, wherein, it has been held by the Full Bench of this Court that in order to apply reservation there must be a minimum of atleast five posts only then 21 % quota, i.e. one post can be worked out for S.C. Category or for O.B.C. Category. Since the total posts are only four in the direct recruitment quota, reservation could not have been applied.
Paragraphs 27 and 28 of the Full Bench read as follows:-
"27. However, even assuming that one such post can exist by applying the rule of necessity and the principle of rounding off, the rule of reservation of 21% in less than five posts cannot be implemented. Law is also acknowledged as a technical dress. The prescription of law therefore cannot be designed through an interpretive tool to make it look upside down. Neither the Government Order dated 8th March, 1973 or the subsequent orders nor the provisions of U.P. Act No. 4 of 1994 project and support any such proposition as advanced on behalf of the State. The mathematical calculation prohibits anything further, and so do the legal principles as noticed above. The game of digits and numbers cannot be taken further even by employing the intuitive mind of the great mathematician Ramanujam nor can such a view be made possible through the best of forensic legacy of law.
28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore 12 not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given then the same would amount to a non-constructive existence of a miscalculated proof in the words of the famous German Mathematician Leopold Kronecker (1823-91). In legal terms this would violate the mandate of the constitution and in cases of promotion it would not be in conformity with the same."
In this view of the matter on the facts of the case and the law laid down by the Full Bench of this Court, no relief can be granted to the petitioner to consider his appointment even against the O.B.C. quota in the absence of OBC vacancy.
Therefore, while dismissing the writ petition a direction is issued to the respondent no.1, Managing Director, U.P. Power Corporation Ltd., Lucknow to examine as to how reservation was applied when only four vacancies were available in the direct recruitment quota.
It is informed by the learned counsel for the respondents that in view of the interim order of this Court the vacancies have not been filled so far.
In the circumstances the respondent no.1, Managing Director, U.P. Power Corporation Ltd., Lucknow is directed to examine the matter in the light of the observations made above and the law laid down by the Full Bench of this Court in the case of Heera Lal (supra) and thereafter proceed to hold the selection for the post of Assistant Public Relation Officer.
Order Date :- 11.8.2014 N Tiwari