JUDGMENT Sudhir Agarwal, J.
1. Heard Sri J.J. Munir, learned Counsel for the petitioner, Sri Anil Bhushan, the learned Counsel for respondent Nos. 3 and 4 and the learned Standing Counsel appearing for respondent Nos. 1 and 2.
2. A counter affidavit has been filed on behalf of respondent Nos. 3 and 4 but no reply has been filed on behalf of respondent Nos. 1 and 2 despite repeated opportunity is granted. Even a stop order was passed on 6.10.2004 permitting six weeks and no more time to respondent Nos. 1 and 2 to file counter affidavit. Still the same has not been filed. This Court also granted indulgence on 30.8.2006 to the learned standing counsel to seek instructions but today, the learned standing counsel representing the respondent Nos. 1 and 2 has stated at the bar that despite information, he has not received any instruction. The learned Counsel for the parties however agreed that the writ petition may be heard and decided finally on the basis of the material available on record. In the circumstances, with the consent of the learned Counsel for the parties, I have proceeded to hear this matter finally to decide under the Rules of the Court at this stage.
3. The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the order dated 6.3.2003 passed by the District Inspector of School, Aligarh permitting the Principal, Adarsh Lag Sama Inter College, Canthal, Aligarh to fill up two vacancies of Class IV employees only from Backward candidates by direct recruitment. He has also challenged consequential advertisement published on 12.5.2003 advertising the said two vacancies to be filled in from OBC category candidates.
4. In brief, the case of the petitioner is that there are 13 sanctioned posts of Class IV in the institution in question, out of which six employees belong to OBC category, three belong to Scheduled Caste and two are General already working. Therefore, advertising two vacancies of Class IV to be filled in only from the reserved quota of OBC candidate is violative of the Act as also Articles 14, 16 and 21 of the Constitution and also contrary to law laid down by the Hon'ble Apex Court in Indra Sawney v. Union of India and Ors. .
5. Since the total sanctioned strength in the institution in respect to class IV cadre is 13 only out of which 9 are occupied by the reserved category candidates, therefore, it cannot be said that any vacancy in reserved quota is still available and could have been filled by reserved category candidates.
6. Reservation of scheduled castes, scheduled tribes and other backward classes, admittedly, is governed by U.P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the 'Act' in short). The aforesaid Act was amended by U.P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) (Amendment) Act, 2002. Section 3 has been amended by the aforesaid Act and as provided under Section 1(2), the aforesaid amendment has been given effect with effect from 15.9.2001. It provides as under:
3. Amendment of Section 3. In Section 3 of the principal Act,-
(a) for Sub-sections (I), (2) and (3) the following subsection shall be substituted, namely:
(1) In public services and posts, there shall be reserved at the stage of direct 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 the persons belonging to Schedules Castes, Schedules Tribes and Other Backward Classes of citizens, -
(a) in the case of Scheduled Casts -Twenty-one per cent;
(b) in the case of Scheduled Tribes -Two per cent;
(c) in the case of other Backward Classes of citizens
-Twenty-seven per cent;
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 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);
(3) Where a vacancy reserved for the Scheduled Tribes remains unfilled even after three special recruitments made under Sub-section (2), such vacancy may be filled from amongst the persons belonging to scheduled castes;
7. A perusal of the second proviso of Section 3(1) makes it clear that in any year of recruitment, reservation shall not exceed either 50% of the total vacancies in that year of recruitment or even 50% of the cadre strength of the service to which the recruitment is to be made. It clearly means that in a particular year of recruitment, the number of vacancies advertised shall not be reserved more than 50%. However, if 50% reservation of the vacancies in that particular year may result in making recruitment of reserved category candidates to the extent of more than 50% of the cadre strength of the service, in such case the reservation of the vacancies shall be reduced so as not to allow it to exceed 50% of the cadre strength of the service. It may be demonstrated as hereinafter. If in a cadre, the sanctioned strength is 100 and 10 vacancies occurred, not more than 5 shall be reserved under 1994 Act. However, if out of 100 sanctioned strength, more than 45 persons working belong to reserved category, e.g., if 48 candidates belong to reserved category, in that event reservation of 5 vacancies out of 10 would result in exceeding 50% of reserved category candidates qua cadre strength and, therefore, though against the total 10 vacancies, 50% could have been reserved, but considering the cadre strength position, only two shall be reserved and rest shall be filled in from general candidates. A plain reading of Section 3(1) second proviso of the Act of 1994 as amended in 2002 makes it clear and I do not find any ambiguity in the language of the provision. This provision, in fact, appears to have been enacted by the legislature to give effect to the view expressed by the Apex Court in Indra Sawhney (Supra) and R.K. Sabharwal v. State of Punjab , Union of India and Ors. v. Virpal Singh Chauhan and Ors. , Ajit Singh and Ors. (II) v. State of Punjab and Ors. and Ajit Singh Januja and Ors. v. State of Punjab and Ors. .
8. In Indra Sawhney, the Apex Court observed (SCC Page-737, Para 814) as under:
Take a unit/service/cadre comprising 1000 posts. The reservation in favour of Scheduled Tribes, Scheduled Castes and Other Backward Classes is 50% which means that out of the 1000 posts 500 must be held by the members of these classes, i.e., 270 by Other Backward Classes, 150 by Scheduled Castes and 80 by Schedules Tribes. At a given point of time, let us say, the number of members of OBCs in the unit/service/category is only 50, a shortfall of 220. Similarly the number of members of Scheduled Castes and Scheduled Tribes is only 20 and 5 respectively, shortfall of 130 and 75. If the entire service/cadre is taken as a unit and the backlog is sought to be made up, then the open competition channel has to be choked altogether for a number of years until the number of members of all Backward Classes reaches 500, i.e., till the quota meant for each of them is filled up. This may take quite a number of years because the number of vacancies arising each year are not many. Meanwhile, the members of open competition category would become age-barred and ineligible, Equality of opportunity in their case would become a mere mirage. It must be remembered that the equality of opportunity guaranteed by Clause (1) is to each individual citizen of the country while Clause (4) contemplates special provision being made in favour of socially disadvantaged classes. Both must be balanced against each other. Neither should be allowed to eclipse the other. For the above reason, we hold that for the purpose of applying the rule of 50% a year should be taken as the unit and not the entire strength of cadre, service of the unit, as the case may be.
(para 96 in AIR)
9. In Ajit Singh Januja (Supra), after referring to Indra Sawhney and R.K. Sabharwal, the Apex Court clearly observed than in any cadre, reservation should not exceed beyond 50 percent. It has also been provided where 50% reserved category candidates have already been recruited, the reservation roster shall stand suspended till a vacancy occur in the cadre itself, which may be filled in from reserved category candidates without exceeding 50% limit in the cadre as well as of the vacancies in a recruitment year. Recently, in R.S. Garg v. State of U.P. and Ors., Civil Appeal No. 2903 of 2001 decided on 27.07.2006, the Apex Court, while considering Section 3 of the Act as well as the provision pertaining to reservation under the Constitution, observed that the cadre consisted of only 6 posts and applying reservation for Other Backward Classes in accordance with the Act and as per roster, two posts would have been available for Schedules Castes candidates meaning thereby 1/3 of the cadre would have to filled in by Scheduled Castes candidates. Negativing it, the Court observed that Article 15(4) and 16(4) profess to bring socially and educationally backward people to the forefront. The Constitution makers thought of protective discrimination and affirmative action only for the purpose of invoking equality clause. Such recourse to protective discrimination and affirmation action had been thought of to do away with social disparities. Therefore, policy of reservation once applied is imperative in public employment and where even by application of roaster, the result goes beyond 21 per cent, the same cannot be allowed to operate, since it would be unconstitutional. The Apex Court in Para 28 of the judgment of R.S. Garg (Supra) concluded as under:
21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roaster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements.
10. Coming to the facts of the case in hand, it is apparent that out of the total sanctioned strength of 13 in class IV cadre, 6 are already occupied by OBCs though as per 27% reservation, only 3 vacancies could have been filled from the OBC. Similarly 3 posts are occupied by the candidates belonging to scheduled castes, though their reservation, being 21%, only 2 appointments could have been made from scheduled caste candidates. Thus the cadre already having candidates belonging to reserve category beyond the prescribed quota, it cannot be said that the two vacancies available could be filled in by applying reservation.
11. The aforesaid observations may not be taken to attach invalidity to the appointments already made, since they are neither disputed in this writ petition nor the persons likely to be affected are party to this case and, therefore, I am not invalidating the appointments already made. It is sufficient for the purpose of this writ petition to notice that out of 13 posts in the cadre sufficient number thereof are already filled in by reserved category candidates and, therefore, two vacancies sought to be filled in by means of the impugned order/advertisement cannot be permitted to be filled in only from the reserved category candidates. Recruitment has to be made in the aforesaid vacancies from the general category candidates. Therefore, in my considered view, the order of the District Inspector of Schools, impugned in the writ petition cannot be sustained and is liable to be set aside being in violation of Article 14 and 16(1) of the Constitution of India read with Section 3(1) second proviso of the Act of 1994 as amended by U.P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) (Amendment) Act, 2002. Consequently, the advertisement, impugned in the writ petition published by the institution pursuant to the order of District Inspector of Schools also cannot be sustained and is liable to be set aside.
12. In the result, the writ petition succeeds and is allowed. The impugned order dated 6.3.2003 (Annexure-2 to the writ petition) and the order dated 12.5.2003 (Annexure-3 to the writ petition) are hereby quashed. The respondents are directed to make recruitment in the aforesaid vacancies from general category candidates in accordance with law. This exercise shall be completed within four months from the date of production of a certified copy of this order before the respondent-authorities. There is no order as to costs.