VISHWAJEET SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THE issues raised in the above writ petitions being inter-related, the writ petitions have been heard together and are being disposed of by this common judgment. Civil Misc. Writ Petition No. 48149 of 2003, Dr. Vishwajeet Singh and others Versus State of U.P. and others contains extensive pleadings of both the parties hence, the same is being treated as leading writ petition. The other writ petitions are to be decided on the basis of the decision in the leading writ petition. We have heard Sri Rajeev Misra, Sri P.S. Baghel Advocates for the petitioners,Sri Jaideep Mathur, Additional Advocate General for the State respondents and Sri H.N. Singh, learned Counsel for the respondent Higher Education Service Commission. It is sufficient to refer to the pleadings of writ petition No. 48149 of 2003, Dr. Vishwajeet Singh, the leading writ petition for considering the issues raised in this bunch of writ petitions. The facts of the leading writ petition are; the petitioners of the writ petition who are four in numbers claim to be duly qualified for appointment on the post of Lecturer in Graduate/Post Graduate Colleges in the State of U.P., have challenged the advertisement No. 37 dated 9.7.2003 published on 16.7.2003 and have also prayed for quashing the Government orders dated 3.7.2003 and 17.4.2003. By advertisement No. 37, the U.P. Higher Education Service Commission has advertised 838 posts of Lecturers in different subjects in various Post Graduates/Graduate Colleges in the State of U.P. by special recruitment to fill up the carry forward and backlog vacancies of reserved categories candidates. All the posts in different subjects have been shown to be reserved for Scheduled Castes, Schedule Tribes and Other Backward Classes. The advertisement mentions number of vacancies in different subjects. The applications have been called separately for different subjects. The advertisement further mentions that guidelines and list of the colleges shall be made available along with the application form. The Government order dated 3.7.2002 was issued for filling up the backlog vacancies of reserved category candidates referring to U.P. Public Services (Reservation of Scheduled Castes, Schedule Tribes and Other Backward Class Amendments) Ordinances 2003 (U.P. Ordinance No. 2 of 2002). The Government order mentions that calculation of reserved vacancies shall be made not on the basis of vacancies but on the cadre strength. Letter dated 4.7.2007 has been issued by the Chief Secretary, State of U.P. to the Principal Secretary/ Secretary referring to the Government order dated 3.7.2002 for filling up the backlog vacancies of reserved category. The Government order 7.4.2003 is also on the same subject of filling the backlog vacancies of reserved category candidate. Petitioner's case in the writ petition is that the entire cadre cannot be taken as a unit for computing reservation for applicability of U.P. Public Services (Reservation of Scheduled Castes, Schedule Tribes And Other Backward Classes) Act, 1994 (hereinafter referred to as 1994 Act). It is further stated that in the advertisement dated 9.7.2003, two types of vacancies have been clubbed, one carry forward vacancies of advertisement No. 29 and secondly the vacancies which have come into existence in the year 2002-03 i.e. a year preceding the year of recruitment. The writ petitioner has prayed for following reliefs. " i) Issue a writ, order or direction in the nature of Certiorari to quash the advertisement dated 9.7.2003 as published in the daily News Paper 'Dainik Jagaran' in it's daily edition dated 16.7.2003 issued by the respondent no. 4, the Secretary, U.P. Higher Education Service Commission, Allahabad, (Annexure-24 to the writ petition); ii) issue a writ, order or direction in the nature of Certiorari to quash the Government orders dated 3.7.2002 and 17.4.2003 issued by the respondent no. 2, the Principal Secretary, Government of U.P. Lucknow (Annexure-21 and 23 to the writ petition); iii) issue a writ, order or direction in the nature of Certiorari to quash the D.O. Letter dated 4.7.2002 issued by the respondent no. 6, the Chief Secretary, Government of U.P., Lucknow (Annexure-22 to the writ petition); iv) issue a writ, order or direction in the nature of mandamus commanding the respondents to fill the vacancies of lecturers that have occurred preceding the year of recruitment i.e. 1.7.2003 to 30.6.2004 in accordance with the Scheme of Reservation as provided in U.P. Act No. 4 of 1994; v) issue a writ, order or direction in the nature of mandamus commanding the respondents not to treat the vacancies that have occurred in the year preceding the year of recruitment as reserved posts; " This Court on 15.7.2005 passed an order directing the standing counsel to produce the record and also to file counter affidavit giving break up of the vacancies and how these vacancies have been clubbed. Again on 18.7.2005, this Court directed the Secretary, Higher Education U.P. to file his personal affidavit, disclosing all material facts and the manner in which the State proposes to implement the Reservation Act qua the posts of Lecturers in recognized and aided degree colleges. This Court directed that affidavit must also disclose that as to how post of Lecturers in a particular subject available in all the recognized and aided degree colleges of the State could be taken as a unit for the purposes of working out the percentage of reservation provided for reserved categories. A detailed counter affidavit after the order of this Court dated 15.7.2007 was filed on behalf of state respondents sworn by Dr. Nakachhed Ram dated 17.10.2005.wherein it has been stated in paragraph 3 that it should be taken as only document which could be considered and earlier filed counter affidavit and supplementary counter affidavit may not be taken into consideration by this Court. In pursuance of the order of this Court dated 28.11.2007 as noticed above, the affidavit of Principal Secretary, Higher Education, Avinash Kumar Srivastava dated 28.3.2008 has been filed explaining the stand of the State regarding implementation of the reservation. The pleadings as contained in the above counter affidavit and the affidavit of the Principal Secretary shall be noted and referred to while considering the specific issues. Now Facts of other writ petitions which have been heard along with this writ petition are to be briefly noted. In writ petition No. 53581 of 2005, the advertisement No. 37 as well as advertisement No. 38 have been challenged. A writ of mandamus has also been sought commanding the respondents to make fresh advertisement applying the roster under the provisions of 1994 Act. The Petitioner's case in the writ petition is that advertisement no. 37 and 38 have been issued reserving all the vacancies therein for reserved category candidate . In advertisement no. 38, 238 vacancies of Lecturers in different disciplines have been advertised . The challenge in the writ petition is founded on the ground that reservation beyond 50% is not permissible. With regard to advertisement no. 37, it has been stated that those vacancies of advertisement no. 29 which have been carried forward, could have been advertised but other vacancies which have been advertised as backlog vacancies are contrary to law. With regard to advertisement no. 38, it is stated that none of the posts advertised (numbering 283) are carry forward posts. In writ petition No. 5902 of 2005, challenge is to the advertisement No. 37 and a prayer has been made to quash the advertisement. In writ petition No. 54882 of 2008 prayer has been made for quashing the advertisement No. 41. A mandamus has also been sought for commanding the respondents not to proceed with the selection process till the writ petition No. 48149 of 2003, Vishwajeet Singh Vs. State of U.P. and others is decided. Advertisement no. 41 mentions number of posts for General Category, Other Backward Class, Scheduled Castes, Schedule Tribes against different subjects. In Writ petition No. 55910 of 2008, again a prayer has been made for quashing the advertisement no. 41 dated 7.2.2007. Writ petition No. 6162 of 2006 is a writ petition filed by a candidate belonging to reserved category, who has stated that interview letter dated 10.7.2005 has been issued in pursuance of his application against advertisement no. 37. The petitioner has prayed for a writ of mandamus, commanding the respondents to declare the result of subject Geography pursuant to advertisement 9.7.2003. The writ petition No. 5632 of 2007 is again a writ petition by a candidate belonging to Other Backward Class who has appeared in the interview in pursuance of his application against advertisement no. 37. A mandamus has been sought for declaring the result of selection in pursuance of advertisement no. 37. Writ petition No.15963 of 2008 is again a writ petition filed by a candidate belonging to reserved category, who has appeared in the interview in pursuance of the advertisement no. 37 against the subject History. The petitioner has prayed for a mandamus directing the respondents to declare the result of interview held on 27.7.2005 with respect to subject history against advertisement no. 37. Learned counsel for the petitioners in support of the writ petition of Dr. Vishwajeet Singh challenging the advertisement no. 37, submitted that advertisement is contrary to 1994 Act. It is submitted that 837 vacancies, which have been advertised cannot be termed as backlog vacancies since only part of the vacancies were earlier advertised and not all the vacancies. It is submitted that vacancies which had never been advertised earlier, cannot be treated as backlog nor can be advertised as reserved for Scheduled Castes category candidates only. It is submitted that the petitioners, who are General Category candidates are entitled to apply against the vacancies, which have never been earlier advertised for reserved category candidate and denial of this opportunity violates their right under Articles 14 and 16 of the Constitution of India. It is submitted that reservation has been applied clubbing different vacancies of lectures in all the post graduate and graduate colleges situated in the State of U.P. It is submitted that all the vacancies of Lecturers cannot be clubbed together nor can be treated as a unit for applying the reservation. It is submitted that every college is a separate unit and reservation has to be applied college wise, subject wise. It is submitted that roster should be applied against each subject in different colleges separately. Since all the posts of Lecturers even in one college although are in same pay scales but refer to different discipline and different subjects, which have different qualifications, treating the posts of Lecturers as one unit and clubbing them for the purpose of applying reservation is illegal. The clubbing of the vacancies by the Director of Education for the purpose of sending requisition to the Commission for advertisement may be permissible for the purpose of recruitment but the entire vacancies of Lecturers in different post graduate colleges/ graduate colleges cannot be treated to be one unit for applying the rules of reservation. The vacancies have to be advertised subject-wise, college-wise and the roster has to be applied subject-wise and college-wise. Neither the vacancies of Lecturer in different colleges can be clubbed nor the vacancies of Lecturers even in one college can be clubbed together for applying the roster. There is no common cadre of Lecturers in different colleges. The posts are sanctioned by the Director of Higher Education subject- wise, separately for each institution. There is no common cadre of Lecturer throughout the State. Learned Additional Advocate General, Sri Jaideep Mathur refuting the submission of learned counsel for the petitioners submitted that U.P. Higher Education Service Commission Act, 1980 after its amendment now permits consolidation of vacancies of all the Lecturers in different colleges thus, after the amendment in Section 12 (3) consolidated vacancies have to be treated as one unit for applying the reservation. Before 1992 Amendment in 1980 Act, college was a unit but situation has changed subsequent to the amendment made in the year 1992 in the 1980 Act. The college is to now send the intimation of vacancies to the Director of Higher Education, who has been permitted to consolidate the vacancies. Sections 12 and 13 of the Act, if read together make it clear that reservation is to apply on consolidated vacancies. It is submitted that by virtue of Section 2 (c) (iv) of 1994 Act, the post of Lecturers in different colleges are covered by definition "Public services and posts". Hence, the reservation is applicable on the post of Lecturers. Learned Additional Advocate General has submitted that by virtue of provisions of section 3 (2) of 1994 Act as amended by U.P. Act No. 1 of 2002, the 50% ceiling for the carry forward vacancies does not apply. Learned Additional Advocate General has very fairly not disputed the proposition that special recruitment for filling the backlog vacancies can be undertaken only when the vacancies were earlier advertised and could not be filled up. Learned Additional Advocate General has not been able to refute the submission of learned counsel for the petitioners that 467 vacancies which have been included in the advertisement No. 37, were never earlier advertised therefore, they cannot be reserved only for reserved category candidates. Sri H.N. Singh, learned counsel appearing for the U.P. Higher Education Services Commission has submitted that there was no reservation in the Higher Education prior to 1994 Act and for the first time reservation has been applied by 1994 Act. He submits that by virtue of section 60-E of U.P. State Universities Act, 1973, the State Government for the first time took responsibility for payment of salary to the teachers of post graduate/ degree colleges. He further submits that the quota for reserved category candidates being not fulfilled, backlog vacancies were advertised to be filled by special recruitment. In writ petition No. 48149 of 2003, applications have been filed for impleadment by Prabhat Kumar Singh and others, Ashish and another, Sunil Kumar and six others, praying for impleadment in the writ petition as respondents. The applicants, who pray for impleadment states that they have appeared in the interview as reserved category candidates in response to the advertisement No. 37 and the interim order passed in the writ petition be vacated. Counter affidavit has also been filed by the applicants Rina and seven others who had prayed for impleadment. Similar stand has been taken by the applicants sought to be impleaded . It is the case of the applicants respondents that carry forward vacancies can be advertised since they were not filled up earlier. The applicants were permitted to be impleaded in the writ petition and they have also been given opportunity to place their case. We have heared learned counsel for the parties and have perused the record. From the pleadings of both the parties, the following issues arise for consideration in this writ petition which are necessary to be decided for effectively deciding all the writ petitions. (i) Whether 467 vacancies, which were available because of retirement, resignation and death up to 30.6.2003, could have been included and reserved for Scheduled Castes, Schedule Tribes, Other Backward Classes only along with 371 carry forward vacancies in advertisement No. 37 of 2003 ? (ii) Whether 467 vacancies were rightly reserved only for Scheduled Castes, Schedule Tribes, Other Backward Classes without they having been earlier advertised or offered to General Category candidates ? (iii) What is a unit for applying the Rules of Reservation according to 1994 Act and the roster framed thereunder ? (iv) Whether the reservation is to be applied by consolidating all the vacancies of the Lecturers in different degree colleges/ postgraduate colleges ? (v) Whether in case, each college is treated to be a separate unit, the reservation is to be applied by clubbing all the sanctioned posts of Lecturers in a college or the reservation and roster are to be applied subject-wise ? (vi) Whether advertisement No. 37 is in accordance with 1994 Act and whether the number of carry forward vacancies i.e. 371 have been correctly determined ? (vii) What is the minimum number of posts in a cadre for applicability of roster issued under sub section (5) of Section 3 of 1994 Act? Learned counsel for both the parties have placed reliance on various judgments of this Court as well as apex Court, wich shall be referred to herein after while, considering the respective decisions. The first two issues being inter-related are considered together. The advertisement No. 37 which has been impugned in the writ petition advertised 838 vacancies. The advertisement no. 37 mentions special recruitment for carry forward vacancies of advertisement No. 29 and backlog vacancies. The advertisement gives the number of vacancies reserved for Other Backward Classes, Schedule Tribes and Scheduled Castes subject-wise. Annexure-25 of the writ petition contains a list of the vacancies college- wise, subject-wise as available in different colleges as noticed above. The counter affidavit on behalf of the State respondents has been filed in pursuance of the order of this Court dated 15.7.2005 and 18.7.2005 . It is useful to refer to the order of this Court dated 15.7.2005 which is being quoted herein below: "Heard counsel for the parties. Shri Rajeev Mishra, learned counsel for the petitioner has urged that backlog vacancies and vacancies occurred during the year has been clubbed by the Commission and all the vacancies which have been advertised to be filled by Scheduled Caste and scheduled tribe and backward class candidates only. He has urged that the vacancies which are to be filled by general category could not be clubbed in the advertisement that is for scheduled caste and scheduled tribe and backward category candidates. Shri Pushpendra Singh states that due to inadvertence counter affidavit could not be filed. However he is directed to file counter affidavit by 18.7.2005. Records shall also be produced by him on 18.7.2005. Learned Standing Counsel shall also file counter affidavit by 18.7.2005 of the Director of Higher Education giving the break up of vacancies and how these vacancies have been clubbed. He shall also produce the records. In case counter is not filed within the time allowed aforesaid or the records are not produced then Secretary, U.P. Higher Education Commission and the Director Higher Education shall appear in person before this Court on 18.7.2005 and show cause as to why they neither filing the counter affidavit nor producing the records. List/put up on 18.7.2005." In the counter affidavit dated 17.10.2005, the details pertaining to 838 vacancies have been mentioned. It is the case of the respondents that 838 vacancies which have been advertised include following: a) 371 carry forward vacancies of advertisement no. 29 which could not be filled up because of non- availability of suitable candidate. b) The vacancies available because of retirement, resignation and death up to 30.6.2003. Paragraph 14 of the counter affidavit, which in categorical terms put forward the stand of the State respondents pertaining to vacancies is to the following effect: "14. That after issuance of U.P. Public Service (Reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes) (Amendment) Ordinances on 6.6.2002 which was incorporated into the Reservation Act 1994 on 31.8.2002, The State Government vide Government Orders dated 3.7.2002, 4.7.2002 and 17.4.2003 (Annexure No.21, 22 and 23 respectively of the writ petition with a view to complete the backlog directed to fill the rest of available vacancies through carry forward and special drive. Consequently, 371 vacancies, which were advertised in advertisement No. 29 but could not be filled because of non availability of suitable candidates, were carry forwarded to advertisement No. 37. At the time of notification of the vacancies to the commission in June 2003 besides carry forwarded vacancies of 371, other 467 vacancies were available because of retirement, resignation and death etc. upto 30.6.2003. Therefore, besides carry forwarded vacancies of 371 from advertisement No. 29, other 467 available vacancies (upto Jnune 2003) were advertised under advertisement No. 37 as reserved vacancies taking total as 838. The breakup of carry forwarded vacancies of 371 is as 100 for Other Backward Class, 238 for SC and 32 ST and breakup of fresh available vacancies of 467 are 252 Other Backward Class 206 SC and 10 for ST. Thus the total advertised vacancies are: OBC=100+252=352 SC=238+206=444 ST=32+10 = 42 Total =838 " Before noticing the provisions of 1994 Act and various amendments made thereunder, the Constitution Bench Judgment in the case of Indra Sawhney and others Vs. Union of India and others, reported in 1992 Supp (3) Supreme Court Cases 217 is to be noted. In Indra Sawhney's case, the constitution Bench laid down that provisions of Articles 16 (1) and 16 (4) have to be harmonised keeping in mind the fact that both are but reinstatement of principle of equality enshrined under Article 14. The provisions of Article 16 (4) has been conceived in the interest of certain section of society which should be balanced against the guarantee of equality enshrined under (1) of Article 16. It has been laid down that reservation should not exceed 50%. The apex Court also considered the question as to whether an year has to be taken as a unit or total strength of cadre for the purpose of applying 50% rule is to be taken. It was held that for the purposes of applying the Rule of 50% an year should be taken as a unit and not the entire strength of cadre. Paragraph 814 of the judgment of the Supreme Court is quoted herein below: " The next aspect of this question is whether a year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji (AIR 1963 SC 649) does not deal with this aspect but Devadasan (AIR 1964 SC 179) (majority opinion) does. Mudholkar, J. speaking for the majority says : "We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities." On the other hand is the approach adopted by Ray, C.J. in Thomas (AIR 1976 SC 490). While not disputing the correctness of the 50'% rule he seems to apply it to the entire service as such. In our opinion, the approach adopted by Ray, C.J. would not be consistent with Article 16. True it is that the backward classes, who are victims of historical social injustice, which has not ceased fully as yet, are not properly represented in the services under the State but it may not be possible to redress this imbalance in one go i.e., in a year or two. The position can be better explained by taking an illustration. 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 0 scheduled tribes. At a given point of time, let us say, the number of members of O.B.Cs. in the unit/service/ category is only 50, a short fall 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 the cadre, service or the unit, as the case may be. (d) Was Devadasan correctly decided? " Next question of carry forward rule also fell for consideration in Indra Sawhney's case. The question was as to whether, if carry forward vacancies are also added, they should also satisfy the 50% rule. The apex Court held that the same position of 50% rule would apply in the case of carry forward rule as well. After the judgment of the Supreme Court, 1994 Act was enacted in the year 1994. Section 3 (4) of the 1994 Act provided that vacancies reserved if remains unfilled even after special recruitment, it may be carried over to the next year subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub-section (1) shall not exceed fifty per cent of the total vacancies. 1994 Act was amended by U.P. Act No. 1 of 2002 by which sub-section (2) was substituted in following manner: " (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 thorugh 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 considred 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) ; " 1 In view of section 3 (2) as quoted above, the carry forward vacancies shall not be considered together with the vacancies of the year of recruitment for the purpose of determining the ceiling of 50% reservation of total vacancies of that year. Thus, the 371 vacancies of earlier advertisement No. 29 can be carried forward and shall not be taken into consideration, while determining the ceiling of 50%. For example for recruitment year ending with 30th June, 2003, 467 vacancies have come into existence and there has been 371 vacancies which are carried forward vacancies of earlier recruitment. For filling the 467 vacancies, if steps are taken and the vacancies are reserved applying the 1994 Act with regard to the vacancies coming into existence till 30.6.2003, the number of vacancies which are reserved for Scheduled Castes, Schedule Tribes and Other Backward Class out of 467 even if added 371 carried forward vacancies it would cross 50% ceiling. The same shall not violate any provisions of 1994 Act and is fully permissible by virtue of sub section (2) of section 3. But in the facts of the present case, the vacancies which have come into existence up to 30.6.2003, were vacancies which arose due to retiremnt, resignation and death and whether the said vacancies can be treated to be backlog vacancies, is the issue to be considered. The opening words of sub section (2) of section 3 " If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancies shall be carried forward..." The question of vacancies remaining unfilled shall arise only when recruitment is held for filling the vacancies. The word 'unfilled' shall arise only when recruitment is held for filling the vacancy. The word 'unfilled' has to be given meaning as per scheme of the 1994 Act and the context in which it has been used. Sub-section (1) of section 3 provides for reservation at the stage of direct recruitment, which contemplates reserving a vacancy for Scheduled Castes, Schedule Tribes, and Other Backward Classes and secondly the vacancy not being filled up remaining unfilled vacancies shall be carried forward. Thus unless steps are not taken under sub section (1) of section 3 for recruitment, sub-section (2) shall have no application. The backlog vacancies are thus, those vacancies which were earlier advertised for filling it but could not be filled up. The question fell for consideration before a Division Bench in context of 1994 Act in the case of Dr. Shashi Kant Rai and others Vs. State of U.P. and others, reported in 1998 (3) A.W.C. 1821. In Shashi Kant Rai's case two advertisements were issued, one advertisement No. 3 of 1996 inviting applications for 47 posts of Medical Officers (Ayurvedic) out of which 42 posts were reserved for Scheduled Castes and 5 posts for Schedule Tribes. Another advertisement was issued being Advertisement No. 1 of 1997, inviting applications for 433 posts of of Medical Officers (Ayurvedic) out of which 389 posts were reserved for Scheduled Castes and 44 for Schedule Tribes. Both the aforesaid advertisements were challenged by the candidates belonging to General Category. The Division Bench of this Court held that advertisement is bad in law, which advertisement provided for 100% reservation. The advertisement offend the provisions of 1994 Act and also equality clause contained under Articles 14 to 16 of the Constitution of India . Following was laid down in paragraphs 10 and 14 of the aforesaid judgment. " 10. From perusal of sub-section (2), (3) and (4) of Section 3 of the Act, it is apparent that the special recruitment can be made for such number of times not exceeding three, as may be considered necessary to fill such vacancies from amongst the persons belonging to that category, provided that in the direct recruitment contemplated under sub-section (1) of Section 3 for vacancies reserved for any 2 category of persons remain unfilled. Thus, for initiating a special recruitment drive, it is necessary that there should have been a process of direct recruitment in respect of the different services and posts as contemplated undere sub- section (1) of section 3. The scheme provided under sub-section (1) does not contemplate a special recruitment independently. For such a move, the condition precedent appears to be an effort of direct recruitment under sub section (1) in which the vacancy reserved for any category of persons mentioned therein remained unfilled. The words, ' if, even in respect of any year of recruitment' used in sub section (2) suggest that the procedure of special recruitment can be adopted both in case of direct recruitment in respect of the vacancies of any year of recruitment or otherwise. Thus, special recruitment providing 100 per cent reservation in favour of a reserved category could only follow a recruitment already undertaken open for all the categories. 14. In our opinion, in view of the judgment of Hon'ble Supreme Court mentioned above, 100% reservation provided for backward and Scheduled Castes and Schedule Tribes categories by the impugned advertisement is not only in contravention of the provisions of the Act but it also offends the equality clause contained in Articles 14,15 and 16 of the Constitution and thus cannot be sustained." From paragraph 14 of the counter affidavit filed by the State respondents in the writ petition as quoted above, the fact is not disputed that 371 vacancies are carried forward vacancies of advertisement no. 29 and 467 are the vacancies which came into existence due to retirement, resignation and death up to 30.6.2003. The 467 vacancies are not even claimed to have been ever advertised for filling up by direct recruitment. It is true that it was open for the State to advertise 467 vacancies and reserve the post as per 1994 Act. But without taking steps for recruitment for filling the 467 posts which recruitment could have also given opportunity to the candidates belonging to General Category to participate, reserving all 467 vacancies for reserved categories candidates is impermissible. The State has done exactly what was disapproved by the apex Court in Indira Sawhney's case in paragraph 814 as quoted above. If the State is permitted to fill up all the vacancies coming into existence by reserved categories candidate, the channel of recruitment for General Category shall stand choked and the candidate of General Category shall have no opportunity to participate in any recruitment although substantive vacancies had arisen in which they have right to participate. The stand taken by the respondents in clubbing 467 vacancies along with carried forward vacancies of 371 and reserving all for reserved category candidates violates rights of petitioners under Articles 14 and 16 (1) of the Constitution of India. A Full Bench of Karnataka High Court in the case of Dr. Rajkumar and others Vs. Gulbarga University and others, reported in AIR 1990 KARNATAKA 320, had occasion to consider similar issue. The Gulbarga University invited applications for selection of 35 teaching posts out of which 33 were reserved in favour of persons belonging to Backward Classes. The recruitment notice was challenged. The Full Bench held that if there are vacancies available both for reserved category candidates and for General Category candidates, it is not open for the State to proceed with the recruitment only from reserved category 3 candidates keeping the vacancies available for open competition. Same is the situation here. 467 vacancies, which arose up to 30.6.2003 by death, resignation and retirement, were the vacancies which were never advertised earlier and on the said vacancies, both reserved category candidates and General Category candidates had right to participate. Following was laid down by Full Bench in paragraph 33: "33. The next question for consideration is, that if in respect of certain cadres there are a few vacancies available for general merit and also for reserved category, is it open for the State to advertise the vacancies reserved for reserved category only without advertising the posts available for general merit? This question has arisen for the reason that in respect of a few cadres to which we shall refer later, even though there were vacancies available both for general merit and reserved category, only vacancies reserved for reserved categories have been advertised. A similar question in another way was considered by a Division Bench of this Court in the case of Gouri Narayan Ambiga v. State of Karnataka, ILR (1979) Kant 1121. In the said case, the constitutional validity of the Karnataka State Civil Services (Direct Recruitment of Scheduled Castes, Scheduled Tribes, and Backward Tribes to Class III posts) (Special) Rules, 1977 was challenged. Under the said Rules, persons who had been appointed as local candidates, i.e. appointed on temporary basis without following the procedure prescribed for recruitment under the relevant Recruitment Rules, belonging to the categories other than Scheduled Castes and Scheduled Tribes, challenged the constitutional validity of the Rules on the ground that when local candidates belonging to general category and reserved category were available in the services of the State Government, the Special Rules for regular recruitment of local candidates who belonged to Scheduled Castes and Scheduled Tribes and backward tribes alone was violative of Arts. 14 and 16(1) of the Constitution. The Division Bench declared the rule invalid. The relevant portion of the judgment reads : "25. Article 16(1) or 16(4) only authorises the reservation of posts in favour of the Scheduled Castes and Scheduled Tribes consistently with the maintenance of efficiency of administration. The prescription of reasonable rules with the qualification and standard for the employment or the appointment is not prohibited by Art.16(1) or 16(2). But it must be common to all citizens consistent with the doctrine of quality of opportunity. It may be relevant to remember General Manager v. Rangachari, AIR 1962 SC 36 at 41 "that Art.16(l) and (2) really gives effect to the equality before law, guaranteed by Art.14 and to the prohibition of discrimination guaranteed by Art.15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other." If different standards are prescribed under the rules for different classes, then it would plainly run counter to the doctrine of equality before law and would be inconsistent with equality of opportunity in matters relating to employment or appointment as guaranteed under Art.16(1)." From the ratio of the above decision, it follows that the reservation provided under Cl. (4) of Art.16 of the Constitution has to be worked out at a common recruitment. It is, therefore, not open to the State 4 to proceed to make recruitment only from among the reserved category keeping the vacancies available for open competition unadvertised. Doing so would be plainly opposed to Arts.14 and 16(1) of the Constitution, for such a step would : (i) deprive the candidates belonging to general category to get themselves recruited at the earliest opportunity; (ii) be against the requirement of efficiency in the services of the State which cannot be ignored in view of Art.335, and (iii) would deprive the seniority to candidates belonging to general category which they would get, if recruitment to general category is made simultaneously. The position would, however, be different if after advertisement of all the vacancies and filling up of vacancies by open competition and/or by reservation if by way of second or still subsequent attempt to recruit candidates belonging to reserved category is sought to be made to fill up the unfilled vacancies reserved for reserved category only from among them. Such a step cannot be held to be violative of Art.14 or 16(1) of the Constitution. In such a situation, the candidates who belong to general category cannot complain because the subsequent attempt for recruitment from reserved category should be treated as part of the earlier process of recruitment. Further the candidates belonging to general category should take it in a spirit of sacrifice and accommodation towards their own less fortunate brethren who belong to backward classes and who are inadequately represented in the State services from which category candidates were not available at the earlier attempt. They should also realise that if at such subsequent attempt, for recruitment also the principle of less than 50% reservation is insisted, the object of Art.16(4) would be defeated and it is the duty of everyone to avoid such a consequence." In view of the foregoing discussions, it is held that in advertisement no. 37 of 2003, 467 vacancies were the vacancies which came into existence up to 30.6.2003, could not have been reserved only for the candidates belonging to Other Backward Class, Scheduled Castes and Schedule Tribes. The above 467 vacancies were never advertised earlier, hence both reserved category candidates and General Category candidates have right to participate. It was, however, open for the State to determine the reserved vacancies out of 467 vacancies and proceed to advertise the same for both general and reserved category candidates in accordance with 1994 Act. Thus, it is held that advertising 467 vacancies were not backlog vacancies and could not have been reserved solely for the Scheduled Castes candidates and inclusion of the said vacancies in the special drive for filling the backlog of Scheduled Castes, Schedule 5 Tribes and Other Backward Classes is impermissible and violates rights under Articles 14 and 16 (1) of the Constitution of India. Questions no. 3, 4 and 5 being inter-related, are being considered together. Before we proceed to examine the respective contentions of the parties on the above questions, it is necessary to have a look over the statutory provisions governing the filling of the posts in post graduate and graduate colleges of the State. The U.P. State Universities Act, 1973 has been enacted to amend and consolidate the law relating to certain Universities. Section 2 (2) of the 1973 Act defines 'affiliated college' . The recruitment of the teachers of the Degree college/ post graduate colleges was being made in accordance with provisions of 1973 Act and the Statute framed thereunder. U.P. Higher Education Service Commission Act, 1980 was enacted to establish a service Commission for the selection of teachers for appointment to the colleges affiliated to or recognised by a university and for matters connected therewith or incidental thereto. Section 2 (c) defines 'college'. Section 2 (g) provides that words used and not defined in 1980 Act but defined in U.P. State Universities Act, 1973, shall have the meanings respectively assigned to them in that Act. Section 12 provides procedure for appointment of teachers. Section 12 as amended by U.P. Act No. 2 of 1992 is being quoted below: "12. Procedure for appointment of teachers.- (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. (2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such manner, as may be prescribed. Explanation.- The expression "academic year" means the period of 12 months commencing on July, 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed subject-wise consolidated list vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations: 6 Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3) : Provided further that the candidates shall be required to indicate their order of preference for the various, college vacancies wherein have been advertised." According to section 12 of the 1980 Act, the management is required to intimate the existing vacancies and the vacancies, likely to be caused during the course of ensuing academic year to the Director at such time and in such manner, as may be prescribed. The Director shall notify to the Commission at such time and in such manner as has been prescribed subject-wise consolidated list of vacancies intimated to him from all colleges. Proviso to section 12 (4) requires that Commission shall give wide publicity to the vacancies notified to it under sub-section (3). Second proviso requires a candidate to indicate their order of preference for the various colleges vacancies wherein have been advertised. Section 30 of the Act provides that provisions of the Act shall have effect notwithstanding anything to the contrary contained in the U.P. State Universities Act, 1973 or the Statutes or Ordinances made thereunder. In exercise of powers under section 32 of the 1980 Act, the U.P. Higher Education Services Commissioner Rules, 1981 has been framed. Part III of the Rules provide procedure for recruitment. Rules 7 and 8 of the 1981 Rules, which are relevant are quoted herein below: "7. Intimation of vacancies [Section 32].- The management of the college shall so far as practicable determine and intimate to the Commission in Form I the number of vacancies to be filled in by recruitment during the course of the year by May 31 each year. 8. Publicity [Sections 12 (3) and 32].- Advertisement of the vacancies in three issues of each of any three leading newspapers having adequate circulation in the State shall be deemed sufficiently wide publicity within the meaning of the proviso to sub-section (3) of Section 12 of the Act." Rule 7 requires the management of the college to intimate to the Commission in Form I the number of vacancies . Form I has been given in Appendix to the Rules. A perusal of Form I indicates that intimation of vacancies to be made by the management to the Secretary, U.P. Higher Education Service Commission giving details as provided for in different column of the Form I. A perusal of the different columns indicate that there was no column for mentioning about vacancies reserved for Scheduled Castes, Schedule Tribes and Other Backward Class . However, column no. 7 which is relevant for the purpose is being quoted herein below: 7 "7. Any other requirements or conditions not covered by the above columns. .........." Regulations have also been framed under section 31 namely; U.P. Higher Education Services Commission (Procedure For Selection of Teachers) Regulations, 1983. Regulation 3 provides that minimum qualifications for appointment of a teacher shall be as given in the Statute referred to in section 50 of the U.P. State Universities Act, 1973. Regulations 4 and 5 provides for determination and intimation of vacancies and notification of vacancies. Sections 4 and 5 are quoted herein below: "4. Determination and intimation of vacancies.- (1) The management shall determine and intimate to the Commission in the proforma, given in Appendix from 1 to the Uttar Pradesh Higher Education Services Commission Rules, 1981 and in the manner hereinafter specified, the vacancies existing or likely to fall vacant during the year of recruitment. (2) The statement of vacancies shall be sent by the Management to the Commission by May 31, preceding the year of recruitment with a copy to the Director and where the vacancy has occurred during the session or after the requisition has already been sent within 15 days of the documents of the vacancy: Provided that where the Commission is satisfied that there are sufficient reasons for doing so, it may with the approval of the Government, relax or modify the time schedule in respect of any year generally or in respect of any particular college. (3) Where the Management has failed to notify the vacancy or the vacancies by the specified date or in the manner prescribed, the Commission may require the Director to notify the vacancy and the vacancy so notified shall be deemed to be notified by the Management. 5. Notification of vacancies submission of application and indication of preference.-The Commission shall advertise the vacancies in the three issues of at least three newspapers. The Commission shall send a copy of the advertisement to the Director and may, if it considers proper, also send a copy thereof to the District Inspector of Schools and to the Colleges. Such advertisement shall, inter-aia, indicate the total number of vacancies as also the number of vacancies in women's colleges and other colleges separately, the names of the college(s) and where they are situate and shall require the candidates to 8 apply in prescribed form and to give if he so desires, the choice of not more than five colleges in order of preference. Where a candidate wishes to be considered for a particular college or colleges only, and for no other, he shall mention the fact in his application: Provided that where the number of colleges is large or for any other reason the Commission considers it inexpedient, it may, instead of mentioning the names and particulars of the colleges in the advertisement, send the copy thereof to the colleges and to the District Inspector of Schools and mention in the advertisement that particulars of the colleges may be seen in the office of the Commission, the office of the District Inspector of Schools or in the Colleges: Provided also that the Commission shall not be bound by the choice given by the candidate and may, in its discretion, recommend him for appointment in a college other than indicated by him. " U.P. Act No. 4 of 1994 has been enacted to provide for reservation in public services and posts in favour of the persons belonging to Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens and for the matters connected therewith or incidental thereto. Section 2 (c) defines 'public services and posts'. Section 2 (c) (iv) which is relevant for present purpose is being quoted herein below: "2 (c).................. (i)...................... (ii)..................... (iii).................... (iv) an educational institution owned and controlled by the State Government or which receives grants- in-aid from the State Government, including a university established by or under a Uttar Pradesh Act, except an institution established and administered by minorities referred to in clause (1) of Article 30 of the Constitution. " 9 By Section 60-E of the U.P. State Universities Act, 1973, the State Government is liable to make payment of salary against such posts of teachers and employees of every such college that was taken in grant-in- aid list by the State Government on or after 31.3.1975. Section 60-A (iv) defines 'teachers' which is to the following effect. "60-A (iv) 'teacher' in relation to a college, means a teacher in respect of whose employment maintenance grant was being paid by the State Government during the financial year 1974-75, or who is employed with the approval of the Vice- Chancellor of the University concerned- (a) to a post created, before April 1, 1975, with the permission of the Vice-Chancellor concerned; or (b) to a post created, after March 31, 1975, with the permission of the Director of Education (Higher Education). " There is no dispute that post of Lecturers have been created and sanctioned as per provisions of 1973 Act and definition of 'public services and posts' in the 1994 Act is applicable on the post of Lecturers in Degree college/ post graduate colleges. Section 3 (1) of 1994 Act provides for percentage of reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens. Section 3 as amended up to date is quoted herein below: "3. (1) In Public services and posts, there shall be reserved at the stage of 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 persons belonging to Scheduled Castes, Schedule Tribes, and Other Backward Classes of citizens,- (a) in the case of Scheduled Castes Twenty-one per cent. (b) in the case of Schedule Tribes Two per cent; (c) in the case of Other Twenty-seven pere cent; 0 Backward Classes of citizens 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 vacancies 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 o 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 Schedule Tribes remains unfilled even after three special recruitments made under sub-section (2), such vacancy may be filled from amongst the persons belonging to the Scheduled Castes; (5) The State Government shall for applying the reservation under sub-section (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reserve points and the roster so issued shall be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in sub-section (1) is achieved, and the operation of the roster and the running account shall, thereafter, come to an end, and when a vacancy arises thereafter in public service or post the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster." In exercise of power under sub-section (5) of section 3 State Government vide notification has issued 100 points roster. A perusal of the provisions of 1980 Act, Rules and Regulations framed thereunder indicate that although section 12 of the 1980 Act has been amended by Act No. 2 of 1992 w.e.f. 22.11.1991 now requiring the Director to notify to the Commission subject-wise consolidated list of vacancies but the rules and proforma mentioned in the Rules and Regulations still contain the requirement of management to intimate the vacancies to the Commission. The provisions of the Act 1 having been amended requiring the college to intimate the existing vacancies and vacancies likely to cause during the ensuing academic year to the Director, sending the said intimation to the Director is a mandatory requirement and the proforma for sending the intimation has to be accordingly amended to make the Rules and Regulations workable. It is also to be noticed that with regard to intimation of reserved category vacancies to the Director and Commission, there is no specific provision in 1980 Act, Rules and Regulations framed thereunder but 1994 Act being applicable, the requirement of 1994 Act has to be fulfilled and all necessary and consequential actions have to be taken by the authorities entrusted to carry on recruitment in accordance with the objective and purpose of 1994 Act. As quoted above, column no. 7 of the Form I of Appendix to the U.P. Higher Education Services Commission Rules, 1981 provide a column for any other requirement or conditions not covered by any other column. 1994 Act having been enforced, the requirement of giving details for determining as to whether the vacancies which have arisen have to be filed by candidates of Scheduled Castes, Schedule Tribes, and Other Backward Classes category candidates, is now mandatory requirement and thus, the management is required to give the details regarding applicability of reservation as per 1994 Act and roster points in their intimation. Sub regulation (3) of Regulation 4 of 1983 Regulations specifically provide that where the management has failed to notify the vacancy by the specified date or in the manner prescribed, the Commission may require the Director to notify the vacancy, if the same is not notified in the manner prescribed. Thus, statutory obligation of the Director to notify the vacancy, if so required by the Commission. After amendment of section 12 by U.P. Act No. 2 of 1992, it is the Director who is now authorised to notify the vacancy to the Commission. The Director thus has all necessary powers and jurisdiction to determine the applicability of reservation as per 1994 Act. After noticing the above provisions, now the question to be considered is 'what is a unit? ' for applying the Rules of reservation according to 1994 Act. The post of Lecturers which have been advertised by Advertisement No. 37, are posts in different colleges affiliated to different Universities. The colleges are not run by a common management but the colleges are run by different managements and the appointing authority for the Lecturers is the management. ' Management' has been defined in the U.P. State Universities Act in section 2(13). There is no common services of Lecturers in different colleges nor Lecturers can be transferred from one college to another in the normal course. Thus, it cannot be said that there is a common cadre of Lecturer throughout all the colleges in the State of U.P. The stand of the respondents as to what is a unit for applying the rules of reservation has been brought on record by an affidavit of Principal Secretary, Higher Education, U.P. in pursuance of the order of this Court dated 28.11.2007, asking the Secretary Higher Education how the post of Lecturers in a particular subject available in all the recognised and aided degree college can be taken as a unit. Paragraphs 11 and 12 of the counter affidavit brings out the stand of the State which is quoted herein below : "11. That it is pertinent to mention that from the perusal of Section 12(3) of the U.P. Higher Education Services Commission Act, 1980 it is clear that for applying rules of reservation neither a college nor a subject is a unit but the entire consolidated vacancies intimated from all colleges of the State in all subjects is a unit. In order to work out the number of reserved vacancies for different categories the subject wise vacancies (in Hindi alphabetical order of the subjects) are placed in hundred point roster one by one in continuation on entire consolidated vacancies. The method can be explained through the following example: Example-. Total pooled vacancies subject wise: Arthashastra (Economics)- 37 Angraezi (English)- 39 Urdu- 08 Hindi- 15 Ganit (Maths)- 20 Rasayan (Chemistry)- 16 Bhugol (Geography)- 17 Consolidated vacancies- 152 Now the roster has to be applied on entire 152 vacancies. In Hindi alphabetical order the aforesaid subjects shall be put in the following order: 1. Angarezi (English)- 39

(2.) ARTHASHASTRA (Economics)- 37

(3.) BHUGOL (Geography)- 17