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CASE NO.: Appeal (civil)  4079 of 2004

PETITIONER: State of U.P. & Anr.

RESPONDENT: Pawan Kumar Tiwari & Ors.

DATE OF JUDGMENT: 04/01/2005

BENCH: CJI R.C. Lahoti,G.P. Mathur & A.K. Mathur

JUDGMENT: J U D G M E N T

R.C. LAHOTI,  CJI   

       In the year 1997 the State Public Service Commission,  pursuant to the requisition made by the State Government on  the advice of the High Court of Uttar Pradesh, advertised 93  posts of Civil Judge (Junior Division) in the Uttar Pradesh Judicial  Service.  Keeping in view the provision for reservation mandated  by the U.P. Public Service (Reservation for Physically  Handicapped, Dependants of Freedom Fighters and Ex- Servicemen) Act 1993 and U.P. Public Service (Reservation for  Scheduled Castes, Scheduled Tribes and Other Backward  Classes) Act 1994, certain posts were reserved.  To the extent of  the percentage of reservation, as contemplated by the two Acts,  mentioned above, there is no controversy.  The controversy  centres around the application of percentage as against the total  number of posts.

       The percentages of reservation, as applicable and as was  actually applied, are set out in the following table:

Category Percentage (prescribed) Percentage  worked out to Number of  Posts  reserved General

50% 46.50 46 Scheduled  Castes 21% 19.53 20 Other  Backward  Classes 27% 25.11 26 Scheduled  Tribes

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2% 1.86 1         

       The respondent belongs to general category.  46 selected  candidates in general category were appointed.  There were 3  candidates in the waiting list.  The respondent was at the top of  the waiting list.  He was denied appointment.

       Feeling aggrieved the respondent filed a writ petition in the  High Court which has been allowed.  A writ of mandamus has  been issued by the High Court directing the appellants herein to  issue a letter of appointment to the respondent.  The State has  filed this appeal by special leave.

       Having heard the learned counsel for the parties we are  satisfied that the appeal is devoid of any merit.

       The High Court has found mainly two faults with the  process adopted by the State Government.  First, the figure of  46.50 should have been rounded off to 47 and not to 46; and  secondly, in the category of freedom fighters and ex- servicemen, total 3 posts have been earmarked as horizontally  reserved by inserting such reservation into general quota of 46  posts which had the effect of pushing out of selection zone three  candidates from merit list of general category.

       We do not find fault with any of the two reasonings  adopted by the High Court. The rule of rounding off based on  logic and common sense is: if part is one-half or more, its value  shall be increased to one and if part is less than half then its  value shall be ignored. 46.50 should have been rounded off to  47 and not to 46 as has been done.  If 47 candidates would  have been considered for selection in general category, the  respondent was sure to find a place in the list of selected  meritorious candidates and hence entitled to appointment.

       It was submitted by the learned counsel for the appellants  that if this principle of rounding off is to be applied then the  percentage of reservation in scheduled tribe category would  come to 2 by rounding off 1.86, to the nearest higher value, and  in that case a candidate from scheduled tribe category and not  the respondent would be entitled to appointment.  We cannot  agree.  No candidate in scheduled tribe category has chosen to  lay challenge to the selection.  We are also not aware if there is  any scheduled tribe category candidate available and qualified  for appointment consequent upon his having participated in the  process of selection.  This plea of the appellants is without any  foundation and hence does not deserve to be taken note of.

       There is yet another reason why the judgment of the High  Court has to be maintained.  The total number of vacancies was  93.  Consequent upon the allocation of reservation and  calculation done by the appellants, the number of reserved seats  would be 47, leaving only 46 available for general category  candidates.  Meaning thereby, the reservation would exceed  50% which would be unconstitutional.  The total number of  reserved seats could not have been more than 46 out of 93.

       The appeal is devoid of any merit and is dismissed.