Surjeet Singh & Others vs Uttarakhand Public Service Commission & Others

Ramesh Ranganathan, CJ

Heard Mr. Vinay Kumar, learned Counsel for the petitioners, Mr. N.S. Pundir, learned Counsel for the Uttarakhand Public Service Commission

and Mr. B.S. Adhikari, learned Counsel for the private respondents.

These two review applications are filed by the petitioners in Writ Petition (S/B) No.385 of 2014 and Writ Petition (S/B) No.438 of 2014 seeking

review of the order passed by us on 13.02.2019. The review applicants are both ex-servicemen. They invoked the jurisdiction of this Court contending

that an advertisement was issued by the Public Service Commission for filling up the posts of Commercial Tax officers; the quota earlier prescribed

for ex-servicemen was withdrawn; and the advertised general category posts were filled up without providing horizontal reservation in favour of ex-

servicemen.

In the order under review, we had noted the petitioner’s contention that 49 posts were advertised for appointment as Commercial Tax Officers

in the general category; 5% reservation for ex-servicemen would require two posts to be reserved for that category; and no posts were filled up by

ex-servicemen. We, thereafter, took note of the stand of the Public Service Commission, in its counter affidavit, that, as against 61 vacant posts, 49

posts of Commercial Tax Officers are to be filled up under General Category; 5% of 61 vacancies is 3; as against 3 ex-servicemen posts, 4 ex-

servicemen are already working as Commercial Tax Officers; and, therefore, all the 49 posts of Commercial Tax Officers were filled with General

Category candidates, and no posts were reserved in favour of ex-servicemen. After taking note of the rival submissions, we had opined that even if

5% reservation for ex-servicemen is computed with respect to all the 61 vacant posts, only 3 posts would be required to be earmarked for ex-

servicemen, and as it is evident from the table, annexed to the counter affidavit filed by the Public Service Commission, that 4 ex-servicemen are

already working as Commercial Tax Officers, the Public Service Commission could not be faulted in not filling up any of the 49 advertised vacant

posts of Commercial Tax Officers with ex-servicemen.

This part of our order dated 13.02.2019 is now questioned by the petitioners as suffering from an error apparent on the face of the record

necessitating its review. Mr. Vinay Kumar, learned Counsel for the petitioners, would submit that, in terms of Section 3(1) (i-a) of the U.P. Public

Services (Reservation For Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993(for short the “1993 Actâ€),

5% of the posts in public services must be filled up by ex-servicemen; Section 3(4), before its omission by the U.P. Act of 1997, placed a fetter on

such reservation by direct recruitment, and stipulated that the quota reserved for ex-servicemen, in any direct recruitment, cannot exceed the quota

reserved in their favour as against the total cadre/ service; while Section 3(4), before its omission by U.P. Act of 1997, required reservation in favour

of ex-servicemen not to exceed the quota earmarked in their favour as against the total sanctioned posts, omission of Section 3(4) by the U.P. Act of

1997 has lifted this embargo; consequently whenever vacancies are advertised which are to be filled up by direct recruitment, 5% of such vacant

posts are to be reserved in favour of ex-servicemen notwithstanding the fact that the prescribed quota of ex-servicemen, as against the total

sanctioned posts, has already been filled up; consequently, notwithstanding the fact that there are already 4 ex-servicemen working as Commercial

Tax Officers under the general category, 5% of the advertised 49 posts of Commercial Tax Officers under the General Category i.e. 2 posts are

required to be reserved in favour of ex-servicemen.

We must express our inability to agree. It is evident from the counter affidavit that the total sanctioned strength of the cadre of Commercial Tax

Officers in the State is 210 of which 50% are to be filled up by promotion and 50% by direct recruitment. Effectively, 105 posts of Commercial Tax

Officers are required to be filled up only by way of direct recruitment. Of these 105 sanctioned posts, 66 posts are to be filled up under the General

Category, while the remaining 39 posts are vertically reserved in favour of the OBC, the Scheduled Castes, the Scheduled Tribes and others.

Providing 5% horizontal reservation in favour of ex-servicemen, with respect to these 66 sanctioned posts under the General Category, would come to

3 posts.

As noted hereinabove, while not more than 3 ex-servicemen could have been appointed under the ex-servicemen quota in the General Category,

there are already 4 ex-servicemen working as Commercial Tax Officers under the General Category.

Accepting the submission of Mr. Vinay Kumar, learned counsel, that horizontal reservation for ex-servicemen is vacancy based and has no

relevance to the total sanctioned posts, would require 2 of the 49 advertised posts of Commercial Tax Officers, under the General Category, to be

filled up by ex-servicemen in the General Category and, consequently, the total number of ex-servicemen appointed under the General Category, in the

direct recruitment quota, would increase to 6 though the quota earmarked in their favour is only 3 out of the 105 sanctioned posts under the direct

recruitment category. While it is true that, hitherto, there was an embargo on filling up the posts, horizontally reserved in favour of ex-servicemen, in

excess of the posts earmarked in their favour in the cadre/service, and this provision has now been deleted, such deletion would hardly make any

difference since the total number of posts sought to be filled up under the ex-servicemen category can, in no case, exceed the number of posts

reserved in their favour in the cadre/service. Providing horizontal reservation of 6 posts for ex-servicemen in the General Category would result in

their being appointed in excess of their quota of 5%, since 5% of the total cadre of Commercial Tax Officers under the General Category would only

be three (i.e. 5% of 66 sanctioned posts of Commercial Tax Officers under the General Category would only be three posts). Appointing 6 persons

under the ex-servicemen General Category would amount to providing 9% reservation in their favour, as against the stipulated 5%.

While examining a similar question in the context of the operation of a roster, a Constitutional Bench of the Supreme Court, in R.K. Sabharwal and

Others Vs. State of Punjab and Others (1995) 2 SSC 74,5 observed that the “running account†was to operate only till the quota provided for the

category was reached, and not thereafter; where a percentage of reservation is fixed in respect of a particular cadre, and the roster indicates the

reserve points, it has to be taken that the posts are to be filled from amongst the members of the reserved category; the State Government makes the

reservation and provides the extent of percentage of posts to be reserved; this percentage has to be followed strictly; the prescribed percentage

cannot be varied or changed simply because some of the members of the said class have already been appointed; and, as long as the rules providing a

certain percentage of reservation are operative, the same has to be followed.

In R.K. Sabharwal, the Supreme Court explained the distinction between the expressions ‘posts’ and ‘vacancies’, and held the

“posts†mean appointment to the position to which a person is appointed; ‘vacancy’ means occupied posts; the plain meaning of the two

expressions make it clear that there must be a ‘post’ in existence to enable the ‘vacancy’ to occur; the cadre strength is always

measured by the number of posts comprising the cadre; the right to be considered for appointment can only be claimed in respect of a post in a cadre;

as a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength; and the

concept of ‘vacancy’ has no relevance in operating the percentage of reservation.

In the light of the law declared by the Supreme Court in R.K. Sabharwal, horizontal reservation in favour of ex-servicemen must also be based on

a percentage of the number of posts, and not on the number of vacancies. As against 105 posts in the cadre of Commercial Tax Officers to be

appointed under the direct recruitment quota, 3 posts are reserved in favour of ex-servicemen under the General Category; and since 4 ex-servicemen

are already working as Commercial Tax Officers, having been appointed by way of direct recruitment under the General Category in posts reserved

in favour of ex-servicemen, the Public Service Commission was justified in not providing reservation in their favour on the basis of the number of

advertised vacant posts.

We are satisfied, therefore, that the order under review does not suffer from any error, much less an error apparent on the face of the record

warranting its review. Both the review applications fail and are, accordingly, dismissed. However, in the circumstances, without costs.