IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 292 of 2008 Pratap Singh ……… Petitioner Versus State of Uttarakhand and others ……… Respondents Coram:- HON’BLE J.S. KHEHAR, CHIEF JUSTICE HON’BLE SUDHANSHU DHULIA, JUDGE Present: Mr. Manoj Tiwari, Senior Advocate with Mr. Ravi Babulkar, Advocate for the petitioner. Mr. P.C. Bisht, Advocate for respondent Nos.1 & 2. Mr. B.D. Kandpal, Advocate for respondent No.3. Date of Decision : 25th February, 2010. J.S. Khehar, C.J. (Oral) The instant controversy relates to, a consideration of claims of Scheduled Tribe candidates, for appointment to the posts of Trade Tax Officer, Grade-I (subsequently re-designated as Assistant Commissioner, Trade Tax) and Trade Tax Officer, Grade-II. 2. Reservation for Scheduled Tribes, claiming appointment by way of direct recruitment, has been determined under Government Order dated 31.08.2001. The aforesaid Government Order lays down a 100 point roster. In the aforesaid 100 point roster, every 24th roster point is reserved for Scheduled Tribe candidates. The first roster point for Scheduled Tribe candidates falls at serial No. 24, and the second one falls at serial No. 28, and so on and so forth. 3. In the first instance, for filling up both the aforesaid posts, i.e. Assistant Commissioner, Trade Tax and Trade Tax Officer, Grade-II, the State Government issued an advertisement on 25.08.2002. Through the aforesaid advertisement, besides other posts, it invited applications for 16 posts of Assistant Commissioner, Trade Tax and 35 posts of Trade Tax Officer, Grade-II. Whilst there was no reservation envisages for Scheduled Tribes in the 16 posts advertised for Assistant Commissioner, Trade Tax. There was one reserved post for Scheduled 2 Tribe candidates amongst the 35 posts advertised for Trade Tax Officer, Grade-II. It is not a matter of dispute, that after the process of selection was completed in furtherance of the advertisement dated 31.08.2001, 16 persons were appointed as Assistant Commissioner, Trade Tax and 35 persons were appointed as Trade Tax Officer, Grade-II. 4. The next advertisement was issued on 26.12.2004. Herein again, besides other posts, 6 posts of Assistant Commissioner, Trade Tax and 27 posts of Trade Tax Officer, Grade-II were advertised. In the instant advertisement, while no reservation was made for Scheduled Tribe candidates in the advertised posts for Assistant Commissioner, Trade Tax, one post was shown as reserved for Scheduled Tribe candidates, out of the 27 advertised posts of Trade Tax Officer, Grade-II. The instant advertisement was in compliance, as also in consonance with, the requisition made by the State Government. During the course of hearing, learned counsel for the petitioner did not dispute the veracity of the instant advertisement. 5. It is only when in furtherance of the advertisement dated 26.12.2004, that the State Government chose to make appointments of 20 selected candidates against the posts of Assistant Commissioner, Trade Tax (as against 6 posts advertised), and 71 selected candidates against the posts of Trade Tax Officer, Grade-II (as against 27 posts advertised), that the petitioner became aggrieved with the action of the State Government, in not filling up by way of direct recruitment the posts which ought to have been filled up by way of reservation from Scheduled Tribe candidates. In order to demonstrate, that it was imperative for the State Government to fill up at least one post of Assistant Commissioner, Trade Tax by way of reservation from amongst Scheduled Tribe candidates, learned counsel for the petitioner emphatically pointed out, that by way of direct recruitment, out of 42 posts filled up by way of direct recruitment from the cadre of Assistant Commissioner, Trade Tax, the sole post earlier occupied in the aforesaid cadre by way of direct recruitment became vacant on 17.12.2005, and as such, when the post was sought to be filled up in the year 2008, in furtherance of the advertisement issued on 26.12.2004 the said vacancy, 3 which became available on 17.12.2005, should also have been filled up. In order to substantiate his instant contention, learned counsel for the petitioner placed reliance on the counter affidavit filed on behalf of respondent No.1, wherein in paragraph 12, the reason for filling up 20 posts of Assistant Commissioner, Trade Tax as against six advertised posts (vide advertisement dated 26.12.2004) was depicted as under:- “That keeping in view the necessity in the department a requisition on 29.03.2007 for the selection of 14 posts of Assistant Commissioner (9 unreserved, 3 S.C. candidate and 2 O.B.C. category candidates) was sent to the Uttarakhand Public Service Commission.” According to learned counsel, it is, therefore, apparent that a supplementary requisition was made by the State Government calling for the filing up of additional vacancies (beyond the advertised vacancies). Since the aforesaid supplementary requisition was made on 29.03.2007 and the vacancy reserved for a Scheduled Tribe candidate became available prior thereto on 17.12.2005, the supplementary requisition should also have incorporated the said vacancy reserved for Scheduled Tribe candidates. This, however, was not done. The action at the hands of the respondents, in not incorporating one Scheduled Tribes vacancy in the cadre of Assistant Commissioner, Trade Tax, in the supplementary requisition made on 29.03.2007 has been admitted as a mistake. The aforesaid mistake was admitted in paragraph-13 of the counter affidavit filed on behalf of respondent No.1, which is being extracted hereunder:- “That it is stated that one S.T. category candidate who was selected under direct recruitment quota earlier, got promoted on 17.12.2005 therefore for the recruitment year 2006-07 one post for the S.T. category candidates was available. Therefore the vacancy so arisen should have been intimated to the Uttarakhand Public Service Commission. But since such vacancy was available in December, 2005 itself only and no selection was conducted by the Public Service Commission in the year 2005 therefore due to clerical mistake no requisition could be sent to the Public Service Commission on the basis of the selection undertaken in the year 2004.” 6. The factual narration recorded hereinabove leads to the irresistible conclusion, that one vacancy in the cadre of Assistant Commissioner, Trade Tax, which had became available with effect from 4 17.12.2005, and which ought to have been filled up by way of reservation from amongst Scheduled Tribe candidates remained unaccounted for. The selecting agency, namely, the Uttarakhand Public Service Commission is not at fault, inasmuch as, it only abides by the requisition made by the State Government. The candidates, who participate in a process of selection, are likewise not at fault as they are not aware of the intricate factual position governing the filling up of vacancies by way of reservation. The blame, therefore, squarely falls on the State Government. In the present controversy, however, the State Government has been honest in accepting the aforesaid blame by acknowledging, that one cadre post of Assistant Commissioner, Trade Tax, which ought to have been filled up by reservation from amongst Scheduled Tribe candidates, could not be incorporated in the supplementary requisition made on 29.03.2007. This acknowledgement, at the hands of the State Government, in our view, makes the issue lesser complicated, and the determination of the claim raised by the petitioner easier to decide. 7. The supplementary requisition dated 29.03.2007 having mistakenly not included one post of Assistant Commissioner, Trade Tax, (which ought to have been filled up by way of reservation from Scheduled Tribe candidates) can easily be remedied by directing respondent Nos. 1 & 2 to rectify the aforesaid mistake in accordance with law. Accordingly, we direct to respondent Nos. 1 & 2 to adopt the measures necessary to rectify the mistake of not including one post of Assistant Commissioner, Trade Tax (to be filled up from amongst Scheduled Tribe candidates) in the supplementary requisition dated 29.03.2007. Needful be positively done within two months from the date of receipt of certified copy of this order. 8. The instant writ petition is disposed of in the aforesaid terms. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 25.02.2010 25.02.2010 P.Singh