Petitioner applied for appointment to the post of Junior Engineer (Civil) in U.P. Housing and Development Board against advertisement dated 08.08.2013. 73 posts of Junior Engineer were advertised, 32 of which were for unreserved category; 26 for OBC category; 10 for scheduled caste category and 5 for scheduled tribe category. Petitioner has annexed his application form in which his category is mentioned as general with sub category as Dependent of Freedom Fighter (in short 'DFF'). His grievance is that out of 73 posts advertised not even a single candidate has been selected in the category of DFF. With reference to page 26 of the writ petition it is pointed out that age relaxation has otherwise been granted to DFF in terms of the statute, and therefore, it is urged that denial of reservation to DFF is wholly arbitrary.
A counter affidavit has been filed in which a reply under RTI Act is annexed as per which none had applied in the category of DFF. It is also stated that petitioner's category being unreserved 2% reservation for DFF would have to be worked out against 32 vacancies, which would be less than one (1), and therefore, the Board has rightly denied consideration to petitioner's claim.
I have heard counsel for the petitioner and Sri N. C. Tripathi for the respondents and have perused the materials brought on record.
Following issues fall for consideration in this matter:
(i) Whether anyone applied under the category of DFF against the advertisement in question?
(ii) Whether reservation would be worked out against the entire advertised vacancies or vacancy reserved in respective category i.e. Unreserved/OBC/SC/ST?
So far as the first issue is concerned petitioner has annexed his application alongwith writ petition as Annexure-3. In the application form petitioner's sub category is clearly mentioned as DFF. This document is not disputed by respondents in their counter affidavit. In such circumstances, the respondents' defence that none had applied under DFF category against the advertisement in question is found to be unsustainable. Since petitioner had applied in the category of DFF it had to be considered and benefit of DFF would have to be extended to him subject to other conditions being fulfilled.
So far as the other aspect relating to applicability of 2% reservation is concerned this issue has been examined by a Division Bench of this Court in Dr. Rajesh Kumar Tiwari vs. State of U.P. and others, 2006 (7) ADJ 21, wherein the Court has been pleased to observe as under in paragraph nos.12 to 16:
"12. The Apex Court in the case of Indira Sawhney v. Union of India , has explained the concept of 'vertical reservations' and 'horizontal reservations'. It would be but appropriate to quote para 95 of the Apex Court Judgment in Indira Sawhney's case (supra):
We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Article 16(4). A little clarification is in order at this Juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, we referred to as 'vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes (under Article 16(4)) may be called vertical reservations whereas reservations in favour of physically handicapped (under Clause (1) of Article 16) can be referred to as horizontal reservations. Horizontal reservations cut across vertical reservations--what is called interlocking reservations. To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to Clause (1) of Article 16. The persons selected against this quota will be placed in the appropriate category; if he belongs to S.C. Category he will be placed in that quota by making necessary adjustments; similarly, if he belongs to open competition (O.C.) category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains--and should remain--the same. This is how these reservations are worked out in several States and there is no reason not to continue that procedure.
It is however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be--indeed cannot be -- applicable to exemptions, concessions or relaxations, if any provided to 'Backward Class of Citizens' under Article 16(4).
13. in the present case, it is admitted fact that 82 vacancies were advertised and the quota fixed for the dependents of freedom fighters is 2%. Thus, 2% of 82 being more than 1.5 would result in to 2 posts in that quota. The law with regard to rounding off is very clear and well settled. Where the value is one-half or more, it has to be rounded off to the next whole number and where it is less than one-half, it has to be ignored. in the present case, 2% of 81 comes to 1.62. It being more than one-half, the value to be taken is 2. This view is supported by the decision of the Hon'ble Apex Court in the case of State of U.P. and Anr. v. Pawan Kumar Tiwari and Ors. .
14. The respondents have, therefore, to prepare a separate panel of the selected candidates in the dependents of freedom fighters quota for 2 posts and thereafter place them in the respective caste category. in the present case, as is clear from the averments contained in paragraph 6 of the counter-affidavit, the quota for the dependents of freedom fighters has been calculated in the different caste categories. The respondents have calculated only one seat in the general category and no quota in the other 3 caste categories because 2% of 41 comes to 0.82, which amounts to 1 post and in all the other 3 caste categories, the vacancies being less than 25, 2% of each of the vacancies being less than 0.5, no vacancy of dependents of freedom fighters quota has been carved out in the other 3 caste categories.
15. Such application of the quota for dependents of freedom fighters is contrary to the provisions of the U.P. Act No. 4 of 1993 and also the Government order dated 22.10.2001 and therefore, cannot be sustained.
16. It is, thus, held that vacancies for applying reservation pursuant to the U.P. Act No. 4 of 1993 have to be calculated from the total number of posts advertised and not from the number of posts reserved for O.B.C., S.C./S.T. and the unreserved posts for open competition. The correct number of vacancies would come to 2 and not 1 as alleged in the counter-affidavit."
(Emphasis supplied) In view of what has been observed above it is clear that 2% reservation has to be worked out against entire advertised vacancies and not against any of sub categories i.e. Unreserved/OBC/SC/ST. The respondents' plea that no vacancy will be available for DFF, therefore, cannot be accepted.
In view of the above, this writ petition succeeds and is allowed. A writ of mandamus is issued to respondents to consider petitioner's claim for appointment in the category of DFF in light of the above observations, within a period of three months from the date of presentation of a copy of this order.
Order Date :- 26.8.2021 Ashok Kr.