- (1.) R. A. Sharma, J. Public Service Commission, U. P. Allahabad (hereinafter referred to as the Commission) issued an advertisement notify ing 375 vacancies (likely to increase or decrease) for the Combined State/ Upper Subordinate Services. One per cent of the posts advertised were reserved for ex-Servicemen. Petitioner, being an ex-Serviceman, made an application pursuant to the said advertisement against the reserved quota of the Ex-Servicemen, petitioner appeared in the preliminary examination but was not declared successful. Being aggrieved, he has filed this writ petition for writ of mandamus, directing the Commission to admit him to the Com bined State/upper Subordinate Services (main) examination, 1994, com mencing from 29-6-1996. Consequential and incidental prayers in connection therewith have also been made. Petitioner has moved an application for amendment of the writ petition, which has been allowed by us.
(2.) THE commission has filed counter-affidavit and has also produced the original relevant record before the Court. We have heard the learned counsel for the parties. The U. P. Public Services (Reservation for Physically Handi capped Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 (U. P. Act No. 4 of 1993) (hereinafter referred to as the 1993 Act) provides for reservation of five per cent vacancies in the Public services and the post in connection with the affairs of the State at the stage of direct recruit ment in favour of physically handicapped, dependants of freedom fighters and ex-servicemen. Section 3 of the said Act, being relevant is reproduced below : "3. Reservation of vacancies in favour of physically handicapped etc.- (1) In public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacan cies at the stage of direct recruitment in favour of- (i) physically handicapped, (ii) dependents of freedom fighters, and (iii) ex-servicemen. (1) The respective quota of the categories specified in sub-section (2) shall be such as the State Government may, from time to time, determine by a notified order. (3) The persons selected against the vacancies reserved under sub section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Caste category, he will be placed In that quota by making necessary adjustments, if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly the belongs to open competition category, he will be placed in category by making necessary adjustments. (4) For the purposes of sub-section (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadre or service, as the case may be; Provided that at no point of time the reservation shall, in the entire strength of cadre or service, as the case may be, exceed the quota determine for respective categories. (5) The vacancies reserved under sub-section (1) shall not be carried over to the next year of recruitment. " Section 2, which is a definition clause, defined the 'ex-servicemen' as under : "2 (x) "ex-servicemen" means a person who has served in any rank, as a combatant or non-combatant, in the Indian Army, Navy, or Air Force, and- (i) has retired from such service after earning his pension, or (ii) has been released from service on medical grounds, in accordance with requirements of such service or because of circumstances beyond his control and has been granted medical or disability pension, or (iii) has been released otherwise than on his own request, as a consequence of reduction in the establishment of such service, or! (iv) has been released from such service after fixed specified period, but has not been released on his own request or has not been dismissed or discharged on account of miscon duct inefficiency and has been granted gratuity ? and includes the following categories of territorial Army personnel, who- (i) get pension for continuous embodied service, (ii) have become medically unfit owing to military service, and (iii) are winners of gallantry award. "
(3.) UNDER 1993 Act, three out of the advertised vacancies have been reserved for the ex-servicemen. These three vacancies have further been reserved/divided by the respondent as under : One vacancy for general Ex-servicemen, One vacancy for Scheduled Caste ex-servicemen, and One vacancy for Backward Class ex-servicemen. A11 ex-servicemen of general category were considered against one of the three vacancies only. Against the remaining two vacancies Ex-servicemen belonging to Scheduled Castes and Backward Classes were considered ? The last amongst the successful general Ex-servicemen obtained 295 marks. AS the petitioner secured only 2m marks in preliminary examination, he was not declared successful and was thus not eligible to appear in the main examination. The last successful Scheduled Caste ex-servicemen obtained, 184 marks, whereas the last successful Backward Class ex-servicemen secured 219 marks. One of the grievances raised by the petitioner is that ex-service men from one class and it is not open to the respondent to divide the vacancies reserved for them on the basis of castes. Learned counsel for the Commission has disputed the above contention.;