- (1.) Writ petitioner-appellant, aggrieved by order dated 26.11.2009, passed by a learned single Judge in Civil Misc. Writ Petition No. 35839 of 2004, has preferred this special appeal under Rule 5, Chapter VIII of the Allahabad High Court Rules.
(2.) Shorn of unnecessary details facts giving rise to the present appeal are that in response to the advertisement made by the U.P. Public Service Commission for appointment to the post of Workshop Instructor, the writ petitioner-appellant (hereinafter called as 'the writ petitioner') as also a large number of candidates offered their candidatures. After usual process of selection, the Public Service Commission published the list of selected candidates on 24.12.2003. The name of writ petitioner does not find place in that. He challenged the select list alleging that out of 17 general posts, 12 posts have been filled-up from the candidates belonging to the reserved category, which is impermissible in law and accordingly, prayer was made to quash the list. It is not the case of the writ petitioner that advertisement itself provided for reservation to the extent indicated above. The writ petitioner's prayer was resisted on the ground that the candidates of reserved category, who had secured equal marks or more marks than the marks secured by the last selected candidate of the general category, have been appointed and those will not account for in the reserved category. The submission made by the writ petitioner did not find favour with the learned single Judge and he dismissed the writ application, inter alia, observing as follows: As per the provisions quoted above, in case a candidate of reserve category has received marks equivalent or higher marks than the general category candidate, then his/her candidature has to be considered as general candidate. In the present case, exactly this has been done and the 12 candidates of reserved category have secured more marks than the general category candidates, as such they have been treated as general category candidates on account of this mandatory provision of Section 3 (6) of U.P. Act No. 4 of 1994. Ceiling of 50% to reserve category candidates in no way is applicable, inasmuch as the selection of reserved category candidates, in the present case, against quota meant for general category candidates, cannot be treated to be exceeding the quota of 50% provided for under the reservation. This ground raised by the petitioner is unsustainable and cannot be subscribed.
(3.) Mr. Pandey, appearing on behalf of the writ petitioner, submits that the reservation of more than 50% posts in favour of reserved category is a fraud on the Constitution and on this ground alone, the select list is fit to be quashed. In support of the submission, reliance has been placed on the judgment of Supreme Court in the case of M. R. Balaji and Ors. v. State of Mysore,1963 SCR 439 and our attention has been drawn to the following passage from the said judgment: It is in this connection that Courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already noticed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is not permitted by Article 15(4); and we have also held that the reservation of 68% made by the impugned order is plainly inconsistent with the concept of the special provision authorised by Article 15(4). Therefore, it follows that the impugned order is a fraud on the Constitutional power conferred on the State by Article 15(4).;