- (1.) SUDHIR Agarwal, J. Heard Sri J. J. Munir, learned Counsel for the petitioner, Sri Anil Bhushan, the learned Counsel for respondent Nos. 3 and 4 and the learned Standing Counsel appearing for respondent Nos. 1 and 2.
(2.) A counter-affidavit has been filed on behalf of respondent Nos. 3 and 4 but no reply has been filed on behalf of respondent Nos. 1 and 2 despite repeated opportunity is granted. Even a stop order was passed on 6-10-2004 permitting six weeks and no more time to respondent Nos. 1 and 2 to file counter- affidavit. Still the same has not been filed. This Court also granted indulgence on 30-8-2006 to the learned standing Counsel to seek instructions but today, the learned standing Counsel representing the respondent Nos. 1 and 2 has stated at the bar that despite information, he has not received any instruction. The learned Counsel for the parties however agreed that the writ petition may be heard and decided finally on the basis of the material available on record. In the circumstances, with the consent of the learned Counsel for the parties, I have proceeded to hear this matter finally to decide under the Rules of the Court at this stage. The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the order dated 6-3-2003 passed by the District Inspector of School, Aligarh permitting the Principal, Adarsh Lag Sama Inter College, Canthal, Aligarh to fill up two vacancies of Class IV employees only from Backward candidates by direct recruitment. He has also challenged consequential advertisement published on 12-5-2003 advertising the said two vacancies to be filled in from OBC category candidates. In brief, the case of the petitioner is that there are 13 sanctioned posts of Class IV in the institution in question, out of which six employees belong to OBC category, three belong to Scheduled Caste and two are General already working. Therefore, advertising two vacancies of Class IV to be filled in only from the reserved quota of OBC candidate is violative of the Act as also Articles 14, 16 and 21 of the Constitution and also contrary to law laid down by the Hon'ble Apex Court in Indra Sawney v. Union of India and Ors. , AIR 1993 SC 477 : 1992 Suppl. (3) SCC 217.
(3.) SINCE the total sanctioned strength in the institution in respect to class IV cadre is 13 only out of which 9 are occupied by the reserved category candidates, therefore, it cannot be said that any vacancy in reserved quota is still available and could have been filled by reserved category candidates. Reservation of scheduled castes, scheduled tribes and other backward classes, admittedly, is governed by U. P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the 'act' in short ). The aforesaid Act was amended by U. P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) (Amendment) Act, 2002. Section 3 has been amended by the aforesaid Act and as provided under Section 1 (2), the aforesaid amendment has been given effect with effect from 15-9- 2001. It provides as under: "3. Amendment of Section 3.- In Section 3 of the principal Act, - (a) for sub-sections (1), (2) and (3) the following sub-section shall be substituted, namely: " (1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Schedules Castes, Schedules Tribes and Other Backward Classes of citizens, - (a) in the case of Scheduled Casts Twenty-one per cent; (b) in the case of Scheduled Tribes Two per cent; (c) in the case of other Backward Classes of citizens -Twenty-seven per cent: Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II: Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made; (2) If in respect of any year of recruitment any vacancy reserved for any category of persons under sub- section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1); (3) Where a vacancy reserved for the Scheduled Tribes remains unfilled even after three special recruitments made under sub-section (2), such vacancy may be filled from amongst the persons belonging to scheduled castes. ";