JUDGMENT D.K. Seth, J.
1. Thirty posts were sought to be filled up pursuant to the Notification dated 7.5.83. The petitioner was selected and placed in the list of Selection Committee at Serial No. 17. Admittedly, 25% of the posts were reserved for Scheduled Caste, 15% for other backward community and 3% for Political sufferers. Thus, a total reservation worked out to 43% while calculating the said percentage on the basis of the said Notification against 30 posts, the Scheduled Caste works out to 7.5, for other backward community 4.5 and that of political sufferers 0.9. The respondents had calculated 7.5 as 8, 4.5 as 5 and 0.9 as one and thus out of total number of posts, 14 candidates, namely, 8 from Scheduled Caste. 5 from backward ' community and one from Political sufferers, were adjusted against reserved category, while 16 candidates were appointed against the general category. This has been challenged in this writ petition by Mr. Sudhir Agrawal, learned counsel for the petitioner. According to him, by reason of such calculation, the maximum limit for reserved category was exceeded. Further, from such calculation it appears that reservation for backward community has exceeded more than 4.5 and fraction is limited to the extent of .5, (point five), which is not a complete unit. If four posts are accommodated against 4.5, in that event appropriate percentage works out to less than the prescribed limit of the reserved category. However, the petitioner contends that he is interested only in one post. If one post is allotted to the general category in that event, the petitioner being at SI. No. 17 shall be accommodated. He has relied on few decisions given on the roster and contends that on the roster the calculation of 43% of reserved category appears to be wrong. Relying on the decision cited by him, he contends that by such calculation, the maximum limit of reserved category may not be exceeded. On this ground, the petitioner claims that the writ petition should be allowed and the petitioner should be accommodated by absorbing in the general category.
2. Sri V. K. Rai, brief holder for the State, on the other hand, contends that since a fraction comes in the figure and is .5, (point five), it should be next higher and when it is less than 0.5, then it should be lower. Therefore, the figure 7.5, is calculated to the next higher figure 8 for the Schedule Caste. Similarly figure 4.5 is calculated as 5 for backward community and 0.9 has been taken as one for the political sufferers. He also relied on a decision as discussed hereafter in support of his contention, in which it has been ruled that in case of fraction the higher number has to be taken. According to him, the writ petition should be dismissed.
3. I have heard learned counsel for both the parties at length.
4. So far as the political sufferers category is concerned, the figure has been worked out to 0.9. Mr. Sudhir Agrawal and Mr. V. K. Rai have not disputed the fact that 0.9 should be treated as one post. Therefore, we may not 'deal with this aspect.
5. The reservation has been limited to the percentage as has been prescribed from time to time and it is not disputed that the total reservation was 43% out of which 25% for Schedule Caste. 15% for other backward community and 3% for political sufferers. Admittedly, out of 30 posts, 25% will work out to 7.5, 15% to 4.5 and 3% to 0.9. Now there can be fraction. Either it has to be taken to the next higher or lower unit. If it is taken to the next higher unit it creates a problem and in that event the total reservation of each percentage for reserved category would exceed and if it is taken to the next lower unit in that event, it will not fulfil the total percentage of reserved category. Therefore, in both the cases, it will prejudice either the percentage of general category or reserved category. Therefore, this question has to be considered on the basis of law on the subject as has been laid down in various decisions, a few of which are cited at the Bar by Sri Sudhir Agrawal and Sri Rai.
6. In the case of Inder Shanker v. State of U. P. and others, 1995 HVD Vol (1) 18, this Court, in Division Bench had held that once the Government has fixed the percentage of reservation under Article 10(4) of the Constitution, it is not open to it either directly or indirectly to make appointments in excess of that quota. It was further held that a roster was provided by the State Government, but the said roster shall remain suspended till the vacancy arises in the reserved quota. Roster is merely a procedure for making appointment/promotion of the candidate belonging to the backward classes upto the maximum limit fixed by the Government, cannot be used as a devise for making appointment in excess of that limit.
7. Thus, it shows that if there is a roster, it has to be followed in accordance with the quota of reserved category as fixed under Article 16(4). If such roster exceeded the limited quota of reserved category, it deemed to have overlapped the quota of general category and in that event to that extent, such roster would be invalid. Therefore, the ratio decided in the said decision of Indra Shanker (supra) will help the petitioner's contention as the roster would be invalid to the extent of overlapping the general category and by an executive order, the percentage fixed under Article 16(4) cannot be mutilated or in other word exceeded.
8. In the case of State Bank of India Scheduled Caste/Scheduled Tribes Employees welfare Association and another v. State Bank of India and others, JT 1996 (4) SC 547, it was held that undoubtedly Article 16(4) enables the Government to make reservations for. Scheduled Caste and Scheduled Tribes either at the initial stage of recruitment or at the stage of promotion. The Apex Court in the case of C. A. Rajendran v. Union of lndia and others, 1968 (1) SCR 721, has stated that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make such reservation. Article 16(4) as provided, conferred a discretionary power on the State to make reservation either at the stage of initial recruitment or at the stage of promotion in favour of backward class of citizen, which in its opinion, is not adequately represented in the service of the State.
9. Relying on the said observations of the Apex Court, Mr. Sudhir Agrawal sought that the power of discretion on the part of the Government as mentioned above has to be determined to what extent the reservation can be imposed. It is not incumbent on the respondents to encroach upon the right of the general candidate by squizing the scope of their eligibility by exceeding the percentage of reserved category to the extent of trenching upon the percentage of general category. Therefore, by reason of the said ratio decided in the case of State Bank of India Scheduled Caste/Scheduled Tribes Association (supra), the excess of reserved category cannot be accepted.
10. Mr. Sudhir Agrawal has also relied upon 25 point roster, which also provides posts at Sl. Nos. 1, 4, 7, 10, 13, 16, 19, 22 and 25 meant for reserved category. Thus, against 25 point, there would be 9 candidates in the reserved category, in order to accommodate 30 candidates, the roster may be repeated as such for the next five candidates and out of which the posts at Sl. Nos. 1 and 4 would be reserved for reserved category. Thus there would be total 11 candidates, whereas in the present case, total comes to 14 and the same is in excess by there candidates. Therefore, on the basis of the roster, there is no scope for ignoring the case of the petitioner, who was at Sl. No. 17 of general candidate. Then again 43% of 30 posts works out to 12.9, posts, which can be rounded of to 13 posts. If it is rounded off to 14 against 30 posts, then percentage will work out to 46.66% which exceeds the reserved quota of 43% by 3.66% more. This is in conflict with the extent of reservation fixed under Article 16(4).
11. Thus, since it appears that the percentage worked out by the respondents by accommodating 14 candidates has exceeded the prescribed limit of percentage reserved for backward classes, the roster has been prescribed only in order to remove the difficulty so long it exists. It is not the duty of the Government to calculate the percentage and determine the posts according to prescribed quota. If such option is open, it might result in conflicting decisions taken by various departments. Since the roster has prescribed according to the percentage of the quota and so long it maintains the percentage fixed it has to be followed.
12. In the present case, Mr. Agrawal has not pointed out the exact maximum limit of reserved quota. Any way, in absence of any material and since it appears on the basis of such roster, that the petitioner is found eligible, there is no scope for him to challenge the roster.
13. Mr. Rat has relied on the decision in the case of Madan Lal and others v. State of Jammu and Kashmir and others. 1995 (3) SCC 486. Relying on paragraph 28 of the said decision, he contends that the Government has recognised two when there is fraction of 2.5, but that decision as observed does not help Mr, Rai inasmuch percentage of 11 posts was calculated 2.5, the Supreme Court had directed only accommodation of two post against- the reserved category. Since if it was made 3 in that event it would have been against the general category. Thus, the said decision does not help the contention of Rai as argued by him.
14. Therefore, from the facts disclosed above, it appears that the petitioner has legal right to the appointment On account of his placement at Sl. No. 17 of the selection list following the roster.
15. In the result, the writ petition succeeds and is allowed. The respondents are directed to give appointment to the petitioner for the post for which he was so selected as such and that such appointment shall be deemed to have been given from the date when the candidate in Sl. No. 16 was given appointment and his seniority should be fixed Just below the candidate in serial No. 16 and he should be paid all the service benefits to which he would have been entitled, if he is appointed according to the roster on the said date.
16. The appointment letter appears to have been issued on 7.11.89, whereas the roster had been prescribed long before 1989, this is the reason for giving the aforesaid directions. Let a writ of mandamus be, accordingly, issued. There shall, however, be no order as to costs.