Surinder Singh Nijjar, J. - (1.) THIS appeal has been filed by the State of Uttar Pradesh challenging the order passed by the High Court of Judicature at Allahabad, in Special Appeal No. 1202 of 2006 whereby the Division Bench of the High Court observed that the action of the State in treating 367 vacancies belonging to the reserved category as backlog vacancies was legally not justified and further issued a direction to the State Government to declare the result afresh in respect of these vacancies as if they are not backlog vacancies and that appointments may be offered in terms of the roster provided under notification dated 25th May, 2002 issued in exercise of powers under Section of the U.P Act No. 4 of 1994.
(2.) IN order to appreciate the factual and legal controversies raised in this matter, it would be necessary to notice the various legislative provisions which govern the field of reservation in Public Services, in the State of Uttar Pradesh. Initially, the reservation in public services in the State of Uttar Pradesh was regulated through various Government orders, issued from time to time. The Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (U.P. Act No. 4 of 1994) (hereinafter referred to as "1994 Act") was enacted by the State of Uttar Pradesh following the judgment of this Court in Indra Sawhney v. Union of India (1992) Supp 3 SCC 217. The aforesaid act repealed the Uttar Pradesh Public Services (Regulation for Backward Classes) Act, 1989 and the Uttar Pradesh Public Services (Reservation for Scheduled Castes and Scheduled Tribes) Act, 1993 and the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and the other Backward Classes) Ordinance, 1994. The 1994 Act itself was amended by the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Act, 2001(U.P. Act No. 21 of 2001). Some provisions of this Act were challenged in this Court in a writ petition. This Court, by Interim Order dated 21st January, 2002 directed that no executive order, in pursuance of the aforesaid Act of 2001, shall be passed during the pendency of the writ petition. Since a large number of vacancies in public service is lying vacant, the State of Uttar Pradesh decided to restore the original position as obtained under the 1994 Act, i.e. before the amendment by the U.P. Act No. 21 of 2001. Thereafter, the Governor of Uttar Pradesh on 6th June, 2002 promulgated the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Ordinance 2002. This was subsequently replaced by the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backwards Classes) (Amendment) Act, 2002 (U.P. Act No. 1 of 2002).
(3.) UNDER the 1994 Act, very comprehensive provisions have been made to provide for reservation in Public Services and Posts in favour of the person belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens and for matters connected therewith or incidental thereto. Section of the aforesaid Act provides certain percentages of vacancies reserved for different categories of backward classes of citizens. The following percentages were prescribed: These vacancies were to be filled in accordance with the roster provided under Sub -Section 5 of Section . The aforesaid percentages remained the same even under the amended Section 3 as contained in the Amendment Act, 2002. In accordance with the aforesaid formula, a requisition was made by the Irrigation Department Government of Uttar Pradesh on 20th October, 1999 to the Uttar Pradesh Public Service Commission, for initiating the process of selection of candidates for the posts of Junior Engineer (Civil). Pursuant to this request, an advertisement was issued on 22nd December, 2000 for filling up 945 such posts. The last date for making the applications was 27th January, 2001. The break up of the said posts sought to be filled up was as follows: 477 general category 257 backward classes 200 Schedule Caste category The written examinations were conducted on 22nd/23rd December, 2001. The aforesaid examination was conducted without taking into consideration the reorganization of the State of Uttar Pradesh and the creation of the State of Uttaranchal on 9th November, 2000. There was a 2 per cent reduction in vacancies upon creation of the aforesaid new State. There was also an increase in the number of available vacancies by inclusion of the recruitment year 2003 -2004. Thus, the total number of posts against which the selection was to be conducted was reduced from 954 to 887. The break up was as follows: General Category 260 Backward Classes 391 Scheduled Castes 223 Scheduled Tribes 13 Consequently, by letter dated 6th November, 2003, the State Government informed the Public Service Commission to take further action for selection of 887 posts for the year 2003 -2004 as opposed to the earlier requisition for 954 posts. Acting upon the aforesaid requisition, the result of the written examination was declared on 6th October, 2005. Thereafter by a letter dated 13th October, 2005, the Government informed the Public Services Commission that at the time of sending of the original requisition, the posts of reserved category have been incorrectly got included in the general selection process. Therefore, the requisition be amended. In this requisition, the following description of the general selection posts was given and a request was made to initiate the process of selection: General Category 260 Scheduled Castes 109 Scheduled Tribes 10 Backward Classes 141 Thereafter, the Government addressed another letter dated 25th October, 2005 to the Public Service Commission with a request to initiate the process of selection of the vacant posts meant exclusively for the reserved categories of Scheduled Castes, Scheduled Tribes and Backward Classes. It was stated that there are a total number of 367 posts in the aforesaid reserved categories for which, it was necessary to initiate the process of selection as a special recruitment. The break up of the posts category wise was: Scheduled Castes 114 Scheduled Tribes 3 Backward Classes 250;