- (1.) PETITIONERS are three in number. They have filed this writ petition challenging the order dated 1.7.2010 passed by the District Supply Officer, Muzaffarnagar (respondent No. 3) classifying and reserving the unallotted 94 fair- price shops within the urban area of Muzaffarnagar in favour of general category, Scheduled Castes/Scheduled Tribes and Other Backward Class (in short 'SCI ST' and 'OBC') persons.
(2.) THE only thrust of the argument of learned counsel for the petitioner is that under the Government Order dated 17th August, 2002 (Annexure - 2 to the writ petition) which has also been relied upon'by the respondents, the unallotted fair- price shops in the urban area of Muzaffarnagar are to be allotted in accordance with the reservation quota which in no case can exceed 50% of the seats/shops. The pleadings of the writ petition shows that reservation of 21 % in favour of Scheduled Caste, 2% in favour of Scheduled Tribe and 27% in favour of Other Backward Class, total 50% is admitted to the petitioners. Out of 41 fair-price shops, the respondent No. 3 has reserved 11 shops for SC as against 9 of their quota and 15 shops for OBC as against 11 of their quota. In this way out of 41 shops 26 shops have been reserved which exceeds the reservation limit. In the supplementary affidavit dated 3.8.2010 filed on behalf of the petitioners, altogether different statistics have been given though the basic contention remains the same. It has been stated that in the urban area of Muzaffarnagar the unallotted shops are 94 in number. Out of aforesaid, 27 shops have been reserved for SC as against their quota of 20 shops, 30 shops have been reserved for OBC as against their quota of 25 shops while no allotment is proposed in favour of ST candidates against their 2% quota. Thus, out of 94 unallotted fair-price shops, 57 shops have been reserved for the SC and OBC which exceeds 50% of the reservation limit.
(3.) IN the counter-affidavit filed on behalf of respondent No. 3 it has been clearly stated that the reservation/allotment of fair-price shop has been done strictly in accordance with the Government Order dated 17.8.2002. IN Muzaffarnagar there are 16 urban areas. IN these urban areas there are 307 sanctioned fair-price shops. Out of the 307 shops, 213 shops have already been allotted and are running. Thus 94 shops are open for allotment According to sanctioned strength the quota of general category is 154 shops, that of SC and ST together is 71 and that of OBC 83 (after rounding of to the next higher number). The general category candidates already hold 115 shops, whereas SC and ST together are holding 43 shops and OBC 55 shops. IN this way, only 39 fair-price shops of general category 27 shops of SC and ST and 28 shops of OBC remain unallotted. The unallotted shops reserved for SC and ST and OBC comes to 27 + 28 = 55 and the reservation to that extent in their favour would not exceed 50% of the total sanctioned strength of the fair-price shops in the urban area. This can be better explained by means of the following chart:__ JUDGEMENT_881_ADJ6_2011Image1.jpg There is no dispute that the reservation limit cannot exceed 50% of the total seats/shops available and that the rule of rounding of is applicable where the number is in fractions. In State of U.P. and another v. Pawan Kumar Tiwari and others, AIR 2005 SC 658, the three Judges Bench of the Supreme Court approved the rule of rounding of in the matter of applying reservation. It held, if the figure arrived at by applying the percentage of quota happens to be in fraction of half or more than half of a number it shall be increased to the next higher number and if it is less than half then its value shall be ignored. It further lays down that in applying the rounding of system the general category seats cannot be reduced to less than 50% of the total seats; meaning thereby that in the event of rounding of, the number of total seats get increased, it is proper to reduce the reserved seats as reservation cannot exceed 50% of the total seats.;