- (1.) R. Dayal, J. The Public Service Com mission, U. P. issued an advertisement bear ing number A-1/e-1/94-95 for Combined State/upper Subordinate Service (Prelimi nary) Examination, 1994 notifying 375 vacancies which later became 384. The petitioner appeared in the aforesaid ex amination but was not declared successful for the main examination. He has claimed himself to be a dependant of a Freedom Fighter, Sri Badri Pal Mishra, being his grandson and has asserted that since the respondent-Commission, fixed 40% marks as pass marks in preliminary examination and he has secured more than that percent age, he ought to have been declared success ful, as the dependants of freedom fighters are entitled to reservation of 2% of the vacancies in view of the provisions of Sec tion 3 of the U. P. Public Services (Reserva tion for Physically Handicapped, Depen dants of Freedom Fighters and Ex-Ser vicemen) Act, 1993 (hereinafter referred as 1993 Act) and of the Government Order No. 18/1/95-Ka-2/95, dated 4. 3. 1995 issued by the Secretary to U. P. Administration.
(2.) IN order to appreciate the controver sy involved, it is necessary at this stage to refer to the relevant statutory provisions and also the government orders. Section 3 of the Uttar Pradesh Public Services (Reser vation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (here-in after referred as 1994 Act) provides for reservation in favour of per sons belonging to these classes in public services and posts at the stage of direct recruitment as per following percentage of vacancies: (a) in the case of Scheduled Castes -21% (b) in the case of Schedu led Tribes - 2% (c) in the case of other Backward Classes of citizens - 27% Section 3 of the 1993 Act provides for reservation of vacancies in favour of physi cally handicapped, dependants of freedom fighters and ex-servicemen. Sub-sections (1) to (3) of Section 3 which are material for the present case, read as under: " (1) IN public services and posts in connec tion with the affairs of the State there shaii be reserved five per cent of vacancies at the stage of direct recruitment in favour of- (1) physically handicapped, (ii) dependants of freedom fighters and (iii) ex-servicemen. (2) The respective quota of the categories specified m sub- section (1) shall be such as the State Government may from time to lime deter mine by a notified order. (3) The persons selected against the vacan cies 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 castes 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 adjust ments; if he belongs to Backward Classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open compensation category, he will be placed in that category be making necessary adjustments. " A notification bearing No. 18/1/95-Ka-2/95, dated 4. 3. 1995 was issued by the State Government in exercise of the powers conferred by Section 3 (2) of 1993 Act providing for reservation quota for the three categories mentioned in sub-section (1) as under: (2) Physcially handicapped -2% Dependants of freedom fighters 2% Ex-servicemen -1% The petitioner has alleged that after declaration of preliminary examination result, the Commission disclosed the following vacancies: (1 ). Deputy Collector -15 (2 ). Dy. S. P.-34 (3 ). Superintendent Jails - 2 (4 ). A. L. Comr.-2 (5 ). TO. /a. O.-15 (6 ). D. C. H. G.-5 (7 ). B. D. O -261 (8 ). E. E. O.-3 (9 ). D. Panchayat Ofr.- 5 (10 ). Asst. E. E. O.-12 (11 ). A. A. O.-30 Total -384 He has urged that if reservation at 2% admissible for the dependants of freedom fighters (DFF) is calculated, there should be one post, reserved for them in the State ser vices and six posts in the upper subordinate services. He has claimed a writ of man damus, order or direction in the nature of mandamus commanding the respondent, the Public Service Commission, U. P. to admit the petitioner as a DFF candidate to the Combined State/upper Subordinate services (Main) Examination, 1994 and also some other consequential reliefs. The respondent has admitted in its counter-af fidavit that 46% marks was feed as policy decision to make a candidate eligible to be considered for the main examination of 1994, but has asserted that the candidates are called as per the merit list in the ratio of 1:25 per vacancy and since sufficient num bers of candidates were not available in the scheduled caste category, all the candidates belonging to that category who secured 40% marks were admitted to the main examina tion of 1994, but in the other categories merit of the last candidate called was very high. According to the Commission the petitioner is a general category candidate and in that category the last candidate called for main examination -1994 secured above 70% marks and since the petitioner got less marks than those obtained by the last suc cessful candidate in that category, he could not be declared successful for the main ex amination. Further, the Commission has stated that firstly the vacancies are divided into three reserve categories, i. e. Scheduled Castes, Scheduled Tribes and other Back ward Classes and one general category and after that the reservation for DFF, physical ly handicapped and ex-servicemen are cal culated in the respective category. For ex ample, if there are 34 posts of Dy. S. Ps. , reservation for three reserve categories and one general category would be as under: Scheduled Castes -7 Scheduled Tribes -1 Other Backward Classes - 9 General -17 After that, quotas of DFF, physically-hand icapped and ex- servicemen are fixed in their respective caste category. As such, there would be no reservation for DFF candidates in general category, since 2% of 17 posts comes to 0. 34%, which is less than 0. 50%. Further, it is alleged that the Supreme Court has observed that reservation quota cannot exceed 50% and if the reservation for DFF. physcially hand icapped and ex-service personnel is not calculated in the above manner the reser vation quota would exceed 50%. We have heard Sri Yar Mohammad, Advocate, for the petitioner and Sri V M. Sahai, Advocate, for the respondent.
(3.) THE main question that falls for decision is whether quotas for DFF, physi cally handicapped and ex- servicemen are to be calculated as a percentage of total vacancies in a particular service or as a percentage of the vacancies in the respective category, (i. e. Scheduled Castes, Scheduled Tribes and other Backward Classes or General) to which the candidate belongs. Sub-section (1) of Section 3 of 1993 Act provides reser vation for the physically handicapped, DFF and ex-servicemen at 5% of the vacancies in other words as a percentage of the total vacancies. After the persons are selected against the vacancies reserved under sub section (3) of Section 3 to be placed in appropriate category to which they belong for example, if a selected person belongs to Scheduled caste category, he is to be placed in that quota by making necessary adjust ments. Similarly, if he belongs to open com petition category, he is to be placed in that category by making necessary adjustments. A combined reading of sub-section (1) and (3) makes it clear that the quotas of the vacancies for physically handicapped, DFF and ex-servicernen are to he calculated as a percentage of total number of vacancies and it is after the persons are selected against the vacancies reserved under sub-section (1), they have to be placed in the respective caste category by making necessary adjustments. Our interpretation is in accordance with Para 95 of the Supreme Court decision in Indira Sawhney v. Union of India, AIR 1993 SC 477, which reads as under: "95. We are also of the opinion that this rule of 50% applies only to reservations in favour of backward classes made under Articles 16 (4 ). A little clarification is in order at this juncture: all reservations are not of the same nature. There are two types of reservations, which may, for the sake of convenience, be referred to as Vertical reservations' and 'horizontal reservations'. The reservations in favour of Scheduled Castes, Scheduled Tribes and other Backward classes (under Article 16 (4) they be called vertical reser vations whereas reservations in favour of physical ly handicapped (under Clause (1) of Article 161 can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations-what is called interlocking reserva tions, To be more precise, suppose 3% of the vacancies are reserved in favour of physically handicapped persons; this would be a reservation relatable to clause (1) of Article 16 The persons selected against this quote will be placed in the appropriate category if he belongs to S. C category he will be placed in that quote by making necessary adjustments; similarly, if be belongs to open competition (O. C.) category, he will be placed in that category by making necessary ad justments. Even after providing for these horizon tal reservations, the percentage of reservations in favour of backward class of citizens remains-and should remain-the same. This is how these reser vations are worked out in several States and there is no reason not to continue that procedure. It is, however, made clear that the rule of 50% shall be applicable only to reservations proper; they shall not be indeed cannot be ap plicable to exemptions, concessions or relaxations, if any, provided to 'backward Class of Citizens' under Article 16 (4 ). " We see no justification for the view ex pressed by the Commission that if quota of reserved vacancies stipulated in Section 3 (1) and the notification issued under Section 3 (2) of 1993 Act is calculated as a per centage of the total number of vacancies and if after the persons selected against the vacancies reserved under sub-section (1) are placed in the appropriate categories to which they belong, reserva tion will exceed 50% of the total vacancies. Our view also finds support from the decision of a Division Bench of this Court rendered on 8. 7. 1996 in Civil Misc. Writ Petition No. 12916 of 1996 (Sheo Shanker Singh v. Public Service Commission, U. P.) where three vacancies were reserved for ex- servicemen, but they were divided in such manner that one vacancy was for general ex-servicemen, another for scheduled caste ex-servicemen and the remaining one was for other backward class ex- servicemen. It was held that divid ing "vacancies reserved for ex-servicemen and allocating them to Scheduled Castes, Scheduled Tribes, Backward Classes and General candidates is. . . . . . without jurisdic tion. All ex-servicemen, who applied against their reserved quota have to be treated as persons belonging to the one and the same class and all of them are to be considered against all the vacancies reserved for them strictly on the basis of the merit irrespective of the caste/class to which they belong. ";