JUDGMENT M. Katju, J.
1. Heard Sri Ashok Khare, learned counsel for the petitioner, Sri Saumitra Singh learned counsel for respondent Nos. 2, 3 and 4, Sri B. P. Singh learned counsel for respondent No. 6 and Sri P. S. Baghel, learned counsel for respondent No. 5.
2. This writ petition has been filed for writ of certiorari against the impugned order dated 10.2.2003 (Annexure-13 to the writ petition) and for a writ of certiorari for quashing the orders dated 9.9.2002 and 13.9.2002 (Annexures-9 and 10).
3. The Chandra Shekhar Azad University of Agriculture and Technology is an Agricultural University and is governed by the provisions of the U. P. Agricultural Universities Act, 1958 and the Statutes and Ordinances framed thereunder. The petitioner was initially granted appointment as Research Associate (Agronomy) in an ad hoc scheme in the University vide order dated 28.2.2001 Annexure-1 to the writ petition. This appointment order was passed by the Vice-Chancellor on the recommendation of a Selection Committee. The petitioner joined as Research Associate (Agronomy) in Krishi Vigyan Kendra, Dalip Nagar, district Kanpur Dehat on 5.3.2001. Prior to the appointment of the petitioner, by the order dated 28.2.2001 the respondent university had issued Advertisement No. 1 of 2000 whereby applications had been invited for filling up nine posts of Subject Matter Specialist (Yield Production) in Krishi Vigyan Kendra of the University. True copy of the said advertisement is Annexure-2 to the writ petition. A perusal of this advertisement shows that out of the nine posts of Subject Matter Specialist, two posts were reserved for Scheduled Caste, three posts for other backward class, and four posts were in general category.
4. The petitioner being eligible applied as a general category candidate in pursuance to the aforesaid advertisement and appeared in an interview. In para 4 of the writ petition it is stated that the selection committee recommended the following names in order of merit in the general category :
(i) Chun Chun Kumar ;
(ii) Rajiv Kumar Singh ;
(iii) Sanjeev Sharma ; and (iv) Amal Saxena.
The petitioner was at serial No. 1 in the waiting list in the general category. The selection committee recommended the names of Shyam Singh and Rajesh Kumar Kanaujiya for the two posts reserved for scheduled caste. The selection committee recommended the following names in order of merit for the three posts reserved in the other backward class category :
(i) Dr. Anokhey Lal ;
(ii) Rajiv ; and
(iii) Arvind.
The aforesaid recommendations of the selection committee were considered and approved by the Board of Management of the respondent university on 29.12.2000. The relevant extract of the proceedings of the Board of Management dated 29.12.2000 is Annexure-3.
5. It appears that out of the selected general category candidates, Chun Chun Kumar who was at serial No. 1 in that category and who had joined in January, 2001, submitted his resignation on 13.9.2001. Hence an order dated 15.10.2001 was issued by the Chief Personnel Officer of the University granting appointment to the petitioner as Subject Matter Specialist (Yield Production) and posting him at Krishi Vigyan Kendra, Farrukhabad vide order dated 15.10.2001, Annexure-4 to the petition. A perusal of the said order shows that it is mentioned therein that the appointment has been made by the Vice-Chancellor of the University on the recommendation of the selection committee and it has been communicated by the Chief Personnel Officer. In pursuance of order the petitioner joined as Subject Matter Specialist (Yield Production) on 26.10.2001, vide Annexure-5.
6. It appears that subsequently the respondent No. 5 Amal Saxena filed a representation before the Chancellor under Section 23 of the Act vide Annexure-6 and the petitioner was asked to submit his reply to the same vide letter of the Chancellor's Secretariat by communication dated 7.5.2002 vide Annexure-7. The petitioner's reply dated 25.8.2002 is Annexure-8.
7. It is alleged in para 22 of the writ petition that even while the aforesaid matter was pending consideration before the Chancellor, the Chief Personnel Officer issued order dated 9.9.2002, Annexure-9 to the petition purporting to cancel the petitioner's appointment as Subject Matter Specialist (Yield Production) and appointing Dr. Amal Saxena on that post. Consequential order dated 13.9.2002 is Annexure-10. Aggrieved against the orders dated 9.9.2002 and 13.9.2002 the petitioner filed Writ Petition No. 42778 of 2002 which was dismissed on 4.10.2002 on the ground of alternative remedy before the Chancellor. The petitioner then filed representation dated 18.10,2002 before the Chancellor vide Annexure-12 which has been rejected by the Chancellor on 10.2.2003 vide Annexure-13.
8. It is alleged in para 35 of the petition that where there are eight posts only two posts can be reserved for backward class category and two posts for scheduled caste category, while four posts had to be kept for general category. The grievance of the petitioner is that five out of the eight posts have gone to the reserved category, two to the scheduled caste and three to the other backward class. The respondent No. 6 Arvind was at serial No. 3 in order of merit amongst the backward class candidates. The submission of learned counsel for the petitioner is that the selection of respondent No. 6 Arvind was illegal since by such appointment the maximum limit of 50% reservation has been exceeded.
9. We have also examined the counter-affidavits in this case.
10. In this case on 21.2.2003 this Court had stayed the operation of the impugned orders dated 9.9.2002 and 13.9.2002 and hence the petitioner continued functioning as Subject Matter Specialist (Yield Production).
11. From the facts of the case it appears that initially there were nine posts of Subject Matter Specialist (Yield Production), which had been advertised by Annexure-2 to the writ petition. Out of these nine posts two were reserved for Scheduled Caste and three for Other Backward Class and four posts were in general category. In our opinion this reservation of five out of nine posts was clearly illegal as it exceeded 50% maximum permissible limit of reservation. In the Constitution Bench decision of the Supreme Court in P. G. Institute of Medical Education and Research v. Faculty Association, JT 1998 (3) SC 223, it has been observed (vide para 31) ;
"Articles 14, 15 and 16 including Articles 16(4), 16(4A) must be applied in such a manner so that a balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserve classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji's case, Devadasan's case and Sabharwal's case. Even in Indra Sawhney's case, the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible."
From the above observation of the Supreme Court it is evident that reservation cannot exceed 50%.
12. There is no difficulty when there are an even number of posts in applying the above rule. For instance if there are 10 posts then a maximum of five posts can be reserved but the remaining five have to be kept in the general category. The difficulty however, arises when there is an odd number of posts. For instance if there are nine posts, 50% of that would be 4.5 Any number above 4.5 would exceed 50% reservation. Hence if five out of the nine posts are reserved it will be exceeding the 50% reservation and would become illegal in view of the above observation of the Supreme Court in the aforesaid decision. Hence the correct legal position is that if there are nine posts then only a maximum of four can be reserved and five must be kept for general category candidates. Hence the initial advertisement was illegal in so far as it exceeded the 50% maximum permissible limit of reservation.
13. However, it appears that subsequently one post was reduced and thus there remained only eight posts. Hence only four posts can validity be reserved, but the respondents have reserved five out of the eight posts, two for S.C. and 3 for O.B.C. Thus, only three out of eight posts have been left for the general category. This is clearly exceeding 50% reservation and hence is illegal.
14. For the reasons given above, this writ petition is allowed. The appointment of respondent No. 6 Arvind as Subject Matter Specialist (Yield Production) is quashed. The petitioner has already obtained a stay order dated 21.2.2003 in this petition. Since Chun Chun Kumar, who was a selected general category candidate had resigned the petitioner being first in the waiting list of general category candidates is entitled to appointment and we direct that he should be allowed to function as Subject Matter Specialist (Yield Production) as a selected candidate and he shall get arrears of salary within two months.