Hon. Dr. Satish Chandra, J.
Heard Shri Vinod Kumar Singh, Senior Advocate assisted by Shri Ashutosh Singh, learned counsels for the petitioner. Learned Standing Counsel appears for the State respondents.
By this writ petition the petitioner has prayed for following reliefs:-
"(i) issue a writ, order or direction in the nature of certiorari for the quashing of the proposal dated 11.11.2009 so far it seeks to fill up by promotion, 2 posts of Commercial Tax Tribunal Departmental Member for Scheduled Caste candidate, instead of 1 post.
(ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to fill up by promotion 8 posts of Commercial Tax Tribunal Departmental Member by general candidate and 1 post by Scheduled Caste candidate.
(iii) issue any other writ, order or direction in the nature of mandamus commanding the opposite parties to consider the petitioner for promotion on the likely to be vacant post of Commercial Tax Tribunal Departmental Member."
It is submitted that the proposal for filling up the posts of the Members of the Trade Tax Tribunal in the year 2009-10 by promotion has wrongly calculated the vacancies. According to the proposal dated 11.11.2009 sent by the Commissioner, Commercial Tax, U.P. Lucknow to the Principal Secretary, Tax and Registration, Government of U.P., 09 members are going to retire in the year 2009-10, out of which 07 vacancies will fall in general category and 02 in scheduled caste, and thus according to the Rules, which provide for forwarding the names of eligible members three times the number of vacancies and with a minimum of 08 names, 21 names have been forwarded for the general category vacancies and 08 for the vacancies reserved for scheduled caste. It is stated that there is no eligible scheduled tribe candidate available for consideration to these posts.
Learned Standing Counsel would submit that in the earlier selections, 04 out of 16 vacancies were worked out to be in the category of scheduled 2 caste/scheduled tribe and since 02 out of these 04 are going to be retired, the names have been forwarded to fill up these two vacancies in scheduled caste category.
Shri Vinod Kumar Singh, learned counsel for the petitioner has relied upon Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (in short the U.P. Act of 1994) which provides for vertical reservation of 21% for scheduled castes, 02% for scheduled tribes and 27% for other backward classes of citizen and the judgment of this Court in Dharam Pal Singh Chauhan and another vs. State of UP and others 2008 (26) LCD 1691. It is contended firstly that the reservation for scheduled castes and scheduled tribes vacancies cannot be clubbed together to determine the number of vacancies as these two categories are separate and distinct, and secondly the clubbing of these vacancies and filling up of 04 posts by scheduled castes/ scheduled tribes candidates is not a precedent to be followed in subsequent years, if the authorities have made a mistake in calculation of vacancies by clubbing the Scheduled Caste and Scheduled Tribe vacancies in the previous years. The mistake can be rectified. Shri Singh submits that such precedent is violative of Section 3 of the Act of 1994, and that if the determination of number of vacancies was not challenged in the earlier selections, the petitioner cannot be deprived of his right and estopped to take into consideration the vacancies in general category.
It is submitted that the Departmental Promotion Committee may meet any time to consider the vacancies, which have been proposed by the Commissioner, Commercial Tax, U.P Lucknow.
Without entering into the merits of the claim of the petitioner, we are of the opinion that the matter of calculation of vacancies should first be considered by the Appointing Authority in accordances with the U.P. Act of 1994.
We therefore dispose of the writ petition with a direction that the respondents shall consider and decide petitioner's representation dated 9.12.2009 by a reasoned and speaking order before convening the Departmental Promotion Committee. The order will be communicated to the respondents within a week.
Dt.4.01.2010 RKP/