IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (SB) No. 319 of 2007 Kul Shekhar Nagar …Petitioner Versus State of Uttarakhand and others …Respondents Mr. Manoj Tiwari, Senior Advocate assisted by Mr. Alok Mehra, learned counsel for the petitioner. Mr. K.P. Upadhyay, learned Addl. Chief Standing Counsel for the State/respondent no. 1 to 3. Mr. A.S. Rawat, learned counsel for respondent no. 4. Connected With Writ Petition (SB) No. 25 of 2010 Y.D. Pandey and another …Petitioners Versus State of Uttarakhand and another …Respondents None appears on behalf of the petitioners. Mr. K.P. Upadhyay, learned Addl. Chief Standing Counsel for the State. And Writ Petition (SB) No. 75 of 2010 Naveen Chandra …Petitioner Versus State of Uttarakhand and others …Respondents Mr. R.K. Raizada learned counsel for the petitioner. Mr. K.P. Upadhyay, learned Addl. Chief Standing Counsel for the State/respondent no. 1, 2 and 4. Mr. Alok Mehra, learned counsel for respondent no. 3. Coram: Hon’ble Barin Ghosh, CJ. Hon’ble Nirmal Yadav, J. Barin Ghosh, CJ. (Oral) The Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 came into force 2 on 27th March 1994. The said Act, as amended from time to time upto 9th November 2000, is applicable to the State of Uttaranchal, upon its constitution, in full force. By section 3 of the said Act 21% of the posts in the State have been reserved for Scheduled Castes, 2% for Scheduled Tribes and 27% for Other Backward Classes. The said Act has mandated upon the State Government to apply the said reservation by notification and to issue a roaster, directing that the same shall continue till exhausted. State of Uttar Pradesh notified an order and thereby implemented the said reservation and at the same time issued a roaster. Those became applicable with full force to State of Uttaranchal now Uttarakhand upon its creation. Subsequent to creation of Uttarakhand, the State of Uttarakhand by a Government Order altered the reservation and also altered the roaster. In terms of the altered reservation 19% posts are reserved for Scheduled Castes, 4% for Scheduled Tribes and 14% for Other Backward Classes. In the year 2003, soon after creation of the State of Uttarakhand, the cadre of the Panchayati Raj Evam Rural Engineering Services was reorganized, which resulted in creation of two posts of Superintending Engineers. Admittedly, those two posts were not filled up. Executive Engineers were asked to discharge duties attached to the said two posts of Superintending Engineers on in-charge basis. On 11th December 2006 the Uttaranchal Rural Engineering 3 (Group A) Service Rules 2006 was made and published by State Government in exercise of its power under proviso to Article 309 of the Constitution of India. In terms thereof, those two posts of Superintending Engineers could only be filled up by promotion amongst substantively appointed Executive Engineers who completed 15 years of service including six years of service as Executive Engineers on the first date of the year of recruitment. The Rules mandated that the recruitment to the said two posts of Superintending Engineers should be made on the basis of merit to be ascertained by a selection committee, to be constituted in accordance with Uttaranchal Departmental Promotion Committee (Constitution for post outside the purview of Public Service Commission) Rules 2002, upon consideration of the character roll and such other records as may be considered proper by the selection committee, whereupon the selection committee shall prepare a list of selected candidates arranged in order of seniority. Therefore, in term of the said rule an eligible Executive Engineers, on being selected, will find his place in the select list on the basis of his seniority. On 8th July 2009 in exercise of power conferred by proviso to Article 309 of the Constitution of India, State Government made Uttarakhand Procedure of Selection for Promotion in Service (Outside the Purview of Public Service Commission) On the Basis of Seniority and Merit Subject to the Rejection of Unfit Rules 2009 and thereby provided that 4 wherever any Rule mandates that selection criteria is merit, then the merit assessed as very good would supercede good but in both cases select list would be prepared on the basis of seniority. The said Rules gave directions for adjudging good as well as very good. Subsequent to coming into force of the aforementioned 2009 Rules, steps were taken to fill up the said two posts of Superintending Engineers by promotion of eligible Executive Engineers. Petitioner in writ petition SB no. 319 of 2007 and petitioner in writ petition SB no. 75 of 2010 were eligible to be considered for promotion to the said two posts of Superintending Engineers. In terms of the roaster thus made by the State of Uttarakhand, the first post of the said two posts of Superintending Engineers to be filled in by promotion was reserved for a Scheduled Caste candidate. Petitioner in writ petition SB no. 319 of 2007, being a person belonging to open category, contended in the writ petition filed by him that when there are only two posts available for being filled up, none of the said posts can be reserved and alternatively, in any event, the first post cannot be reserved for Scheduled Caste. Petitioner in writ petition SB no. 75 of 2010, being the only Scheduled Caste candidate, who was eligible for being considered for promotion to in any of those two posts was arrayed as private respondent in writ petition SB no. 319 of 2007. During the pendency of writ petition SB no. 319 of 2007 selection was made, whereupon one 5 gentleman by the name of Sri Bhupendra Singh Kaira, Executive Engineer, belonging to open category, had been appointed to one of those two posts of Superintending Engineer. No appointment has been made to the other post. It is the contention of petitioner in writ petition SB no. 75 of 2010 that selection committee adjudged him as the most meritorious, but despite that recommended appointment of the said Bhupendra Singh Kaira. It was contended that thus the merit rule has been breached. That is the reason for filing writ petition SB no. 75 of 2010. Bhupendra Singh Kaira is one of the respondents therein. Heard learned counsel for the parties. In writ petition SB no. 319 of 2007 the form and features of the applicable roaster has not been challenged. It has not been stated in the writ petition that the roaster as made is contrary to the reservation policy of the State. It has, however, been contended that when 19% of the posts have been reserved for Scheduled Castes at the best 5th or 6th post could be reserved for them in the roaster. The reason for non application of reservation policy when there are two posts was not indicated. From what had been submitted in support of writ petition SB no. 319 of 2007 we have gathered that the contention is, since the reservation policy is on percentage basis, unless there are 100 posts available at one time, the reservation policy cannot be given effect to as there may be likelihood of reservation 6 exceeding the reservation directed in the policy, which is not permissible. When there are 100 posts no problem arises. Reservation depicted by percentage can be appropriately reflected in those 100 posts. However, practically 100 posts are not always available in every cadre. In the event, only four posts are available, until such time all those four posts are supplied and thereupon vacancies crop up, according to the logic given by counsel for petitioner in writ petition SB no. 319 of 2007, no Scheduled Caste can be appointed since the 5th post only is available for him. In such a situation while those four posts will be filled up no post would be filled up by a Scheduled Caste giving a go by to the reservation policy and when the 5th post will be filled up by a Scheduled Caste, he would be occupying 25% of the posts and thereby would increase the percentage of reservation fixed by the State Government. We think that these are no argument at all. What is required to be done is to ensure that every community is represented in the posts according to their reservation during a certain period of time, i.e. until such time available posts are filled up the 100th post and that is the object of introducing 100 point roaster. If the first post in the roaster is reserved for a Scheduled Caste and only two posts are available, then at the time when those two posts are filled up, 50% of the posts will be filled up by a reserved category candidate and remaining 50% by open a category 7 candidate. When the person occupying the first post retires or demits his office and, accordingly, a vacancy crops up that would be the third post available. If that post is available for an open category candidate, on the same being supplied, 100% of the posts would be occupied by open category candidates and no post by a reserved candidate, despite there being a policy for reservation. However, when all the 100 posts will be supplied, it would appear that all those 100 posts have been supplied in accordance with the reservation policy of the State. In those circumstances, it does not matter whether the first post should or should not be kept reserved. What matters is whether the reservation policy has been truly and correctly reflected in the roaster or whether the roaster has been prepared in such a fashion that the reservation policy has been given a go by. Learned counsel for petitioner in WPSB No. 319 of 2007 cited a judgment of the Hon’ble Supreme Court rendered in the case of R.S. Garg Vs. State of U.P. and others reported in [2006 (6) SCC 430]. In that case at paragraph 34 of the report, it has been observed that when reservation was to be confined to 21% and there were 6 posts and if the roaster was to be followed two posts would be reserved for Scheduled Caste candidates, which is impermissible. As it appears, what the Hon’ble Supreme Court said was that preparation of roaster was inappropriate. In the instant case as aforesaid such case has not been made out. 8 The main object of filing writ petition SB no. 75 of 2010 is to obtain a declaration that there has been dilution of the criteria of merit as the same has been converted into criteria of seniority. We do not think any such dilution has been made in the facts and circumstances of the case. As aforesaid the 2006 Rules made it clear that if the candidate succeeds on merit he is not to be listed in accordance with his merit but to be listed in accordance with his seniority. 2009 Rules made it clear that in the matter of adjudging merit what should be done, with a further clarification that a person getting very good on the basis of yardstick specified in the said Rules cannot be superceded by a person obtaining good by virtue of his merit. In such view of the matter, and there being no dispute that petitioner in writ petition SB no. 75 of 2010 as also Bhupendra Singh Kaira were adjudged very good on merit and Bhupendra Singh Kaira, being senior to the petitioner in writ petition SB no. 75 of 2010, there can be any scope of interference with the selection and appointment of Bhupendra Singh Kaira in one of the posts of Superintending Engineer which was available for open category candidates. We, accordingly, refuse to interfere with the same. We, however, declare that there being no just reason not to supply the first post of Superintending Engineer by a Scheduled Caste candidate in accordance with the mandate of the applicable roaster, the said post should be supplied by a Scheduled Caste candidate in 9 accordance with merit adjudged in course of selection of Bhupendra Singh Kaira but on the basis of seniority of the candidates selected. The appointment pursuant to such selection will relate back to the date of appointment of Bhupendra Singh Kaira for all practical purposes, except that the candidate so to be appointed will not be entitled to receive actual salary payable for the post in question. He shall be entitled to the same from the date of his appointment. It is made clear that the person to be appointed, shall be entitled to all other benefits of such appointment, including seniority, retrial/terminal benefits, etc. from the date Bhupendra Singh Kaira was promoted. Writ petition no. 25 (SB) of 2010 has been filed by two petitioners, who, as it appears, did not fulfill the eligibility criteria for being considered for promotion. Writ petitions are, accordingly, disposed of. (Nirmal Yadav, J.) (Barin Ghosh, C.J.) VKG 23.11.2010