R.A.Sharma - (1.) -U. P. Public Service Commission, Allahabad (hereinafter referred to the Commission) had issued an advertisement inviting applications for various posts including 35 posts of Sales Tax Officers to be filled on the basis of combined State Services examination-1985. As per the advertisement one post of Sales Tax Officer was reserved for physically handicapped persons. The petitioner, who claims to be physical handicapped person, submitted his application against the quota reserved for physically handicapped persons. The petitioner was declared successful in the aforesaid examination and was at serial no. I in the merit list of Accounts groups services of candidates belonging to the category of physically handicapped persons and in overall merit list he was placed at serial no. 106. As per advertisement the petitioner was expected to be appointed as Sales Tax Officer against one post which was reserved for physically handicapped persons. He was, however, appointed as Assistant Accounts ; Officer instead of Sales Tax Officer. As the post of Asstt Accounts Officer is alleged to be inferior to the post of Sales Tax Officer the petitioner made representation but without any result. He has accordingly filed this writ petition for a writ of mandamus commanding the respondents, namely, the State of U. P. and the Commission, to appoint him to the post of Sales Tax Officer.
(2.) A counter affidavit has been filed on behalf of the Commission. In paragraphs 3 and 6 of this counter-affidavit it has been stated that in the advertisement issued by the Commission one post of Sales Tax Officer and one post of Assistant Accounts Officer of Accounts group, were reserved for physically handicapped candidates and accordingly the result was declared, but, as in the meantime, it was discovered that over all reservation for the posts of Sales Tax Officer exceeded 50 percent which was against the constitutional propriety, the Government considered the matter and made adjustment in the reservation for some categories, according to which one post of Sales Tax Officer reserved for physically handicapped persons was dropped, with the result that there was no reservation for physically handicapped persons for the post of Sales Tax Officer. From perusal of the chart of over all reservation, given in para 6 of the counter-affidavit, it appears that out of 18 reserved posts for scheduled caste, 1 post for Scheduled Tribes and 1 post for physically handicapped persons were reserved. In this manner out of 35 posts of the Sales Tax Officer 18 posts were reserved and 17 posts were left for general candidates after the result was declared, the Government, as mentioned above, re-adjusted the reservation, according to which the reservation for physically handicapped persons was dropped and one extra post was addled to the quota of Scheduled Caste after deleting one post reserved for Scheduled Tribes. On account of this readjustment of reservation by the Government the petitioner could not be appointed to the post of Sales Tax Officer against the quota of physically handicapped persons, although the Government Order dated 28-7-1977 which provided for reservation for various categories, including physically handicapped persons, was not modified and remained intact. Article 15 (4) and 16 (4) of the Constitution of India, being enabling provisions, give discretionary power to the State Government to make reservation It is the discretion of the Government to make or not to make reservation under the aforesaid provisions, but having once made reservation in exercise of its powers under these provisions it cannot refuse to make appointment of the persons belonging to a class in whose favour the reservation has been made as long as the order of reservation stands. It is open to the Government to withdraw or cancel the resevation order made under Articles 15 (4) and 16 (4) of the Constitution of India. Bat so long as the order of reservation made by the Government is not cancelled, persons belonging to the class, in whose favour the reservation has been made, are entitled to be appointed against the reserved vacancies/posts. In the instant case, the Government order making reservation in favour of physically handicapped parsons, has not been charged and still stands. What the Government has done is that without changing or modifying its order dated 28-7-1977, while readjusting the over all reservation so as to bring it within 50 percent of the total posts, it has altogether dropped the reservation for physically handicapped persons in the cadre of Sales Tax Officer. As long as the order providing for reservation in favour of physically handicapped persons stands it is not open to the Government either to refuse to reserve the past/vacancy for them or not to make appointment against the post/vacancy which was reserved or ought to have been reserved for them. The position would have been different had the Government cancelled or modified its original order dated 28-7-1977 withdrawing the reservation in their favour.
(3.) THAT apart, the Commission by its advertisement, notified one of 35 posts of Sales Tax Officer as reserved for physically handicapped persons. As the petitioner has applied in pursuance of that advertisement, it was not open to the respondents to withhold his appointment against one post which was reserved for physically handicapped person. As laid down by the Supreme Court in the case of N. T. Hevin Katti v. Karnataka Public Se>vice Commission, AIR 1990 SC 1233, the relevant extract of which is reproduced below a candidate who has applied for and has undergone the test in accordance with terms and conditions contained in the advertisement, acquires vested rights for consideration in accordance with the same terms and conditions as are contained in the advertisement : "There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing Rules or Govornment Orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing Rules and Government Orders, Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules." For the reasons given above this writ petition is allowed with costs. The respondents are directed to appoint the petitioner to the post of Sales Tax Officer against the post reserved for physically handicapped persons forthwith. The petitioner shall be given all benefits to which he would have been entitled, had he been initially appointed as Sales Tax Officer, instead of Assistant Accounts Officer. Petition allowed.;