WP(C) 405/2009 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA Heard Mr. A.K. Goswami, learned Sr. counsel assisted by Mr. P. Bhuyan, l earned counsel for the petitioner as well as Mr. P.J. Saikia, learned counsel fo r the respondent No. 4. I have also heard Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate representing the respondent No. 1. Mr. M.R. Pathak, learned Stand ing counsel, Education Department appears for the respondents No. 2 and 3. The issue raised in this writ petition is a very narrow campus which is as to whether in a cadre strength of four posts there could be reservation. The post involved is UDA under the Directorate of Non-Formal and Adult Education. Wh ile it is the case of the petitioner that having regard to the cadre strength wh ich is four, there can not be any reservation, it is the case of the respondent No. 4 that irrespective of the cadre strength the reservation roster will be ope rative. In the writ petition the basic grievance of the petitioner is that the r espondent No. 4 although does not belong to SC community, he has fraudulently o btained the SC certificate after 20 years of entering into service and thus, his candidature as SC candidate should have been rejected. The fact of cadre streng th being four has come to light when the application for vacating stay was file d by the respondent No. 4. Upon such disclosure the next question for considerat ion of this Court is as to whether in a cadre strength of four, there can be any reservation. Mr. Goswami, learned Sr. counsel for the petitioner submits that if the second issue is decided in favour of the petitioner, the first issue need not b e gone into. In this connection, he has referred to the additional affidavit fil ed by the petitioner relating to impossibility of reservation having regard to c adre strength of four. Mr. Goswami, learned Sr. counsel for the petitioner has placed reliance on the decision of this Court in the case of Phaninda Nath Choudhury vs. State o f Assam and others reported in 2007 (4) GLT 587. He has also placed reliance on the decision dated 26.05.09 passed in W.P.(C) No. 1947/09. In both the cases it has been held that roster will operate only if the per centage of reservation permits such operation. In Phanindia Nath Choudhury ( supra) also the cadre strength was four and it has been held that in a cadre of four posts there can not be any application of reservation roster inasmuch as th e per centage of reservation would not permit operation of such roster. Mr. P.J. Saikia, learned counsel for the respondent No. 4 has placed rel iance on the Office Memorandum dated 24.08.1963 so as to contend that even in c ase of four posts in the cadre of UDA, there could be reservation. Apart from t he fact the Office Memorandum cannot override the statutory rules, same is in r espect of ’carry forward’ rules. The Office Memorandum was issued in the context of said ’carry forward’ rules, according to which if a sufficient number of sui table candidates belonging to SC/ST eligible for reserved vacancies is not avail able for the respective classes in a particular year, such vacancies are to be t reated as unreserved vacancies during that year and such shortfall in the number of SC/ST is to be carried forward to the next recruitment year. It was in that context, the Office Memorandum provided that if there are only two vacancies, on e of them may be treated as reserved vacancy. The Office Memorandum does not dea l with the kind of situation in which the present case is, where the cadre stren gth is four. If the per centage of reservation prescribed in the relevant Rules does not permit reservation, there is no question of operation of reservation ro ster. In view of the above, this writ petition is allowed providing that in ca se of promotion to the post of UDA in the Directorate of Non-Formal and Adult Ed ucation, the authorities shall not apply the reservation roster and the post sha ll be filled up in accordance with law without reserving the same for reserved c ategory candidate. Writ petition is disposed of.