DEVI PRASAD SINGH, J. - (1.) THE substantial questions of law cropped up for adjudication in the present writ petition are: (1) Whether, while enforcing the roster in the matter of promotions or appointments, the State Government may fill up the vacancies travelling beyond the statutory quota provided for the reserved category? (2) Whether, the percentage of reservation should be determined on the basis of sanctioned strength or the vacancies arisen at a particular point of time?
(2.) THE controversy relates to reservation in promotion on the post of Engineer -in -Chief in the Irrigation Department. The service condition of the Engineers of the Irrigation Department, is governed by the Uttar Pradesh Service of Engineers (Irrigation Department) (Group -A) Rules, 1990 (in short, the 1990 Rules). Admittedly, there are two posts of the Engineer -in -Chief namely, Engineer -in -Chief Irrigation Department and the Engineer -in -Chief (Design and Planning) Irrigation Department, created under 1990 Rules. By the impugned order dated 27.8.2008 (Annexure -1 to the writ petition), the State Government took a decision to fill up the post of the Engineer -in -Chief (Design and Planning) Irrigation Department from the candidates belonging to the Scheduled Castes category because of superannuation of one Jai Prakash on 31.8.2008, who also belongs to Scheduled Castes category. It is not disputed that out of the two posts, one post is occupied by the general category candidate and for the other post, by the impugned order, the respondents have proceeded to fill up the vacancy from the candidate belonging to Scheduled Castes category. According to the submissions of Sri S.K. Kalia learned Senior Counsel appeared for the petitioners, since there are only two posts of the Engineer -in -Chief, and though, one is occupied by a candidate of General category, the other cannot be reserved for the scheduled caste category on the ground that reservation quota of the Scheduled Castes category is 21% and in case one post out of two, is provided to the candidate of the Scheduled Castes category, the reservation quota shall travel beyond the outer limit of 21 % provided by the statute.
(3.) THE petitioner No. 1 was substantively appointed as Assistant Engineer (Civil) in the Irrigation Department on 15.12.1969 whereas, the petitioner No. 2 was appointed as Assistant Engineer (Civil) in the Irrigation Department on 10.3.1972. The petitioner No. 1 was promoted on the post of Executive Engineer substantively on 3.7.1989 whereas the petitioner No. 2 was promoted as Executive Engineer on 31.8.1988. The petitioner No. 1 was promoted as Superintending Engineer on 20.6.2001 whereas the petitioner No. 2 was promoted as Superintending Engineer on 3.5.2000. The petitioner No. 1 was promoted as Chief Engineer Level -II on 9.9.2005 whereas the petitioner No. 2 was promoted as Chief Engineer Level -II on 3.3.2006. Both the petitioners were promoted as Chief Engineer Level -I on 26.6.2007 and 30.6.2008 respectively. It is not disputed that both the petitioners as well as a candidate under scheduled caste category falls within the eligibility zone and promotion to the post of the Engineer -in -Chief is to be done from the persons holding the Office of the Chief Engineer Level -I on merit;