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PETITIONER: HIRA LAL

       Vs.

RESPONDENT: DISTRICT JUDGE, GHAZIABAD & OTHERS

DATE OF JUDGMENT13/04/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PATHAK, R.S.

CITATION:  1984 AIR 1212            1984 SCR  (2) 739  1983 SCC  (3) 371        1983 SCALE  (1)388

ACT:      U.P.   State    Subordinate   Service-Reservation   for Scheduled Castes-Appointments  should be  made in accordance with roster prescribed.

HEADNOTE:      The petitioner,  a  member  of  the  Scheduled  Castes, secured the  7th position in the test and interview held for filling up six vacancies in the post of stenographer and was not selected  for appointment.  The State Government had, by an order,  directed that  18 per  cent of  the posts  in the subordinate   services  should  be  reserved  for  Scheduled Castes  whenever   recruitment  was   to  be   made  through competition and also provided that in the roster register of every 25  vacancies,  the  1st  7th,  13th,  19th  and  25th vacancies should be reserved for Scheduled Castes. The stand taken by  the respondents was that while making selection to the six  vacancies in  question,  no  reservation  had  been intended to be made in view of the position that the post of stenographer was  covered under  Class III  service and  the total strength  of Class  III employees  as on  the relevant date was  132 and  there were  as  many  as  28  among  them belonging to the Scheduled Castes which was more than 21 per cent. The  petitioner contended that the direction regarding reservation should have been applied and he should have been selected for appointment.      Allowing the petition, ^      HELD: That  more than 21 per cent of the posts in Grade III  service  were  being  manned  by  people  belonging  to Scheduled Castes  at the  relevant time  is no answer to the prescription of  the roster. It is not known whether some of the recruits  of earlier  years already in service belonging to the  Scheduled Castes  had come  on the  basis of overall merit without  reference to  reservation. When six vacancies were being filled up at a time in one year if the roster was to be  followed, one  of the  posts would  indisputably have gone to  the candidate  of the  Scheduled Castes. As per the roster, the  petitioner was entitled to be appointed against the first vacancy. [731 E-H; 742-A]

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JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 4007 of 1982      (Under Article 32 of the Constitution of India)      R.K. Jain for the Petitioner.      Prithvi Raj and Mrs. S. Dikshit for the Respondent. 740      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. Petitioner, who offered himself as a candidate  for one  of the posts of Stenographer in Hindi, in the  establishment of  District Judge of Ghaziabad in the State of  Uttar Pradesh,  has come  with this petition under Article 32  alleging the violation of his fundamental rights enshrined in  Arts. 14  and 16  of the  Constitution. He has pleaded that  he is a member of the scheduled castes and the State Government  by a  general order  in  March,  1965  had directed that  "in services  subordinate to  U.P. Government for recruitment through competition" 18% of the posts should be reserved  for members of the scheduled castes. He further alleged that  when six vacancies in the post of Stenographer in Hindi  were advertised  to be  filled up  and he  offered himself as a candidate, he was examined in shorthand test on April 17, 1982, and was shown in the third place in the list of successful candidates published on April 24, 1982 and was called to  an interview on May 1, 1982. According to him, in the final  list of  successful candidates  his position  was shown as  no. 7  and, therefore,  he was  not  selected.  He complains that  he  was  downgraded  from  the  third  place without  justification,  and  if  the  Government  order  of reservation of  18% had  been kept  in view,  he should have been selected  even if  he secured  the seventh place in the merit list.      In the  return to  the rule,  the  Additional  District Judge of  Ghaziabad has  indicated that  the petitioner  had secured eighth  place in shorthand test and his name figured as no. 3 in the list of successful candidates as it has been drawn up in alphabetical order. At the interview he improved his position  and was  ultimately shown  as no.  7.  In  the selection no  reservation had  been intended  to be  made in view of  the position  that  the  post  of  Stenographer  is covered under  Class III  service and  the total strength of Class III  employees in the judgeship of Ghaziabad as on May 1, 1982,  was 132  and there  were as  many as 28 among them belonging to  the scheduled  castes which  came to more than 21%-3% above the reservation. An assertion was made that the process of recruitment had been fair and bona fide.      A rejoinder  has been filed by the petitioner accepting the position  that "the  written test and the interview were done without  any "mala fide" but reiterating the contention that  direction   regarding  reservation  should  have  been applied and the petitioner appointed on selection. 741      It is  not the  case of  the answering  respondent that reservation indicated  in Government  order of  1965 was not applicable to  the relevant recruitment and the assertion of the petitioner  that in  the  previous  years  provision  of reservation was  implemented has also not been disputed. The scheme  in   the  Government  order  contemplates  a  roster register for every 25 vacancies and prescribes the following mode:      (1) 1 reserved for scheduled castes.      (2) 2-6 unreserved.      (3) 7 reserved for scheduled castes.      (4) 8-12 unreserved.      (5) 13 reserved for scheduled castes.

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    (6) 14-18 unreserved.      (7) 19 reserved for scheduled castes.      (8) 20-24 unreserved.      (9) 25 reserved for scheduled castes.      Paragraph 2  of the Government order states: "if in any particular year  there are  only two vacancies, no more than one should  be considered reserved and if there is only one, that should  be considered unreserved; the reservation shall be valid  up to  three years". When six vacancies were being filled up  at a  time in  one year,  if the roster was to be followed, one  of the  posts would indisputably have gone to the candidate  of the  scheduled castes.  The stand taken in the counter-affidavit that more than 21% of the posts in the Grade III  cadre of  the judgeship  were being manned by the people belonging  of the  scheduled castes  at the  relevant time is  no answer  to the prescription of the roster. It is not known  whether some  of the  recruits of  earlier  years already in  service belonging  to the  scheduled castes  had come on  the basis  of overall  merit without  reference  to reservation.      On this premise, if the provision of reservation had to be kept  in view,  the petitioner  was bound  to  have  been recruited. We  allow he  petition. As per the roster, he was entitled to be appointed 742 against  the   first  vacancy.  We,  therefore,  direct  the appointing authority  to  appoint  the  petitioner  in  that vacancy and  five out  of the six who are respondents 3 to 8 before us  according to  their position  in final merit list shall be retained.      We make no order as to costs. H.L.C.                                     Petition allowed. 743