Sunil Ambwani, J. - (1.) HEARD Shri Ashok Khare, Senior Advocate assisted by Shri V.D. Shukla, learned counsel for the petitioners. Learned Standing Counsel appears for State respondent no 1 and 2. Shri Pushpendra Singh has accepted notice on behalf of U.P. Public Service Commission-respondent No.3. The petitioners have prayed for setting aside corrigendum dated 30.1.2008 issued by the Secretary, U.P. Public Service Commission, Allahabad as published in newspaper 'Amar Ujala' dated 31.1.2008, and further not to take any action on the basis of the corrigendum. The petitioners have further prayed to declare the result of the posts of Health Education Officers after taking into account the reservation of 11 posts for Scheduled Tribe category in consonance with the Advertisement No.2 of 2005-06 as original issued by the Public Service Commission, U.P. Allahabad ignoring the corrigendum dated 30.1.2008. The U.P. Public Service Commission (in short the Commission) issued an advertisement No.2-05-06 published in the newspaper 'Rozgar Samachar' dated 2 to 8.07.2005 inviting application for selecting candidates for several category of posts in different departments of the State. Apart from other posts the advertisement invited applications for filling up 546 posts of Health Education Officers in the Department of Family Welfare. Out of these 256 posts were for general category; 158 for Other Backward Class category; 121 for Scheduled Castes category candidates and 11 for Scheduled Tribe category, in accordance with the reservation for different categories on posts in the U.P. Public Service (Reservation for SC, ST and OBC) Act, 1994 (in short U.P. Act No.4 of 1994) providing for 21% reservation for Scheduled Castes, 27% for OBC and 2% for Scheduled Tribe candidates. All the twelve petitioners belongs to Scheduled Tribes. They applied and were declared successful in the written examination and were called for interviews. Before the final result could be declared, a corrigendum was published by the U.P. Public Service Commission, by which 11 posts of Scheduled Tribe category candidates were withdrawn with reference to the revised requisition forwarded by the Director, Medical and Health, U.P. The Court issued notice on 12.2.2008 directing that all 11 posts of Health Education Officer shall be kept in waiting for the decision of the writ petition. The interim order was extended on 18.2.2008 and is operative. In the counter affidavit filed by Smt. Mamta Yadav, Deputy Director (Administration), Directorate General Family Welfare, Lucknow, it is stated that after requisition of the vacancies to the Commission a meeting was held in pursuance to the directions of the Director General, Medical and Health dated 5.8.2007. Dr. Gajraj Prasad, Addl. Director, Maternity Care and Smt. Mamta Yadav, Deputy Director (Admn.) present in the meeting on 8.8.2007 considered the matter with regard to reservations on the posts of Health Education Officers and found that the position with regard to reservation at the state level and at the divisional level would be different. The Committee decided that since under the relevant rules the appointing authority of the posts in the cadre is Regional Addl. Director, Medical Health and Family Welfare, U.P., the break up of the vacancies and the reservations applicable to it should be collected from regional level. The committee decided to again meet to consider the number of vacancies to be offered to the reserved category candidates. After collecting the data from the Regional Deputy Directors, Medical Health and Family Welfare of the 17 divisions in the State, it was found that in all 621 posts of Health Education Officers (General 305, OBC 181, SC 133 and ST 2) are vacant. In the selections advertised by special recruitment for 31 vacancies of reserved category candidates (OBC 12, SC 17 and ST2) a list of 30 candidates was received. One vacancy for Scheduled Tribe candidate was forwarded and that on taking into consideration the number of vacancies, which were filled up, a total number of 590 posts were available in which the break up of reserved posts would be in the ratio of 305 for General; 169 for OBC; and 116 for SC. The Committee found in its meeting dated 10.12.2007 that the posts of Health Education Officer is a post belonging to regional cadre on which the requisitions were required to be sent by Regional Deputy Director. Instead requisitions were made by the Head Quarters in which reservation was applied to 546 posts in which 256 for General; 158 for OBC, 121 for SC and 11 for ST were notified, and thus the posts of reserved categories exceeded 50% of the total number of posts. The Committee resolved to amend the requisition by applying the reservation in a manner to call for 273 General, 158 OBC and 115 SC candidates from the Commission. The break up of the posts region wise is given in the chart appended to the counter affidavit at page 15. The Committee thus proposed to break up the number of posts, so as to provide 50% to unreserved and 50% to reserved categories. In pursuance to the decision taken by the Committee dated 8.8.2007 the State Government forwarded the amended requisition on which the corrigendum under challenge in this writ petition, was issued. Shri Ashok Khare, learned counsel for the petitioner submits that the U.P. Extension Educators Service Rules, 1985 regulate the recruitment to the post of Health Education Officers. Rule 2 provides that U.P. Extension Educators Service is a subordinate service comprising of group 'C' posts. The 'appointing authority' under Rule 3 (a) means the Regional Joint Director, Medical, Health and Family Welfare Department. The selections are provided through U.P. Public Service Commission under Rule 16, to be filled up by selection in consultation with Public Service Commission (Procedure) Rules, 1970. He would submit that determination of vacancies by the appointing authority under Rule 14 will not make the cadre a regional cadre. The cadre of service defined in Rule 4 shall be such as determined by the Governor from time to time and that the strength of the service of each category of post is given in Appendix (A) to the rules. Rule 4, 14, 16 and the Appendix is quoted as below:- "4. Cadre of service- (1) The strength of the service and of each category of post therein shall be such as may be determined by the Governor from the time to time. (2) The strength of service and of each category of the posts therein shall, until orders varying the same are passed under sub-rule (1) shall be as given in Appendix 'A'. Provided that- (i) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation. (ii) the Governor may create such Additional, permanent or temporary posts as he may consider proper. 14. Determination of vacancies- The appointing authority shall determine and intimate to the Commission the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes. Scheduled Tribes and other categories under Rule 6. 16. Procedure for recruitment by promotion- Recruitment by promotion shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission (Procedure) Rules, 1970. APPENDIX Name of the Posts Number of posts sanctioned Service Rule 4 (2) Permanent Temporary Total 1. District Extension 36 72 108 Educator
(2.) EXTENSION Educators 292 710 1002" Shri Khare submits that since the strength of service is determined by the Governor and has been given in Appendix (A) without reference to the regions, the reservation to the vacancies would be applicable state wise and not region wise. In the alternative Shri Ashok Khare submits relying upon the chart of the vacancies region wise at page 15 of the counter affidavit that by rounding of the fraction of the number of vacant posts in the regions, 11 vacancies would still fall in the category of Scheduled Tribe category. He has relied upon the judgment in State of U.P. Vs. Pawan Kumar Tiwari and Ors., (2005) 2 SCC 10 in which it was held that treatment of fraction of vacancy has to be given in a manner, that where fraction is one half or more, it should be treated as one, and if it is less than one half, it should be ignored. Learned Standing Counsel on the other hand would submit that the appointing authority under Rule 4 and Rule 3 (a) of the Rules of 1955 is Regional Joint Director, Medical health and Family Welfare Department. In Rule 14 the vacancies have to be determined by the appointing authority i.e. the Regional Joint Director, Medical Health and Family Welfare Department to be intimated to the Commission during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6. The procedure for direct recruitment provides for consideration of selection by direct recruitment to be invited by the Commission in the prescribed form. The Commission shall under sub-rule (2) of Rule 15, having regard to the need for securing due representation of the candidates belonging to Scheduled Caste, Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates as it considers proper. The requisition of vacancies region wise, and the break up worked out by the committee would not include the Scheduled Tribe candidates as according to the roaster position the vacancies have to be worked out region wise. Accordingly there are only two vacancies of Scheduled Tribe for which one candidate has been selected in the special recruitment, and one vacancy is to be considered/adjusted in future due to the non-availability of the candidates. The U.P. EXTENSION Educator Service Rules, 1985 applicable to the advertised posts, provide in Rule 2 the status of the service as subordinate service comprising Group-C post. The world 'service' is defined in Rule 3 (i) means the U.P. EXTENSION Educator Service. The strength of the service and of each category of posts therein shall be in Rule 4, such as may be determined by the Governor from time to time. The strength of the service and of each category of post shall, until so far the orders varying the same are passed under sub-rule (1) shall be such as given in Appendix 'A'. The Appendix appended to the rules provide for name of the posts and the number of posts sanctioned both permanent and temporary and includes the posts of District EXTENSION Educators and EXTENSION Educators. The number of posts have since thereafter increased. There is no break up of the posts given region wise in the schedule. The appointment under Rule 5 has to be made by direct recruitment at 75% and by promotion from amongst permanent State Family Welfare Health Assistants and Permanent Male and Female Social Workers, who possess Bachelor degree, at 25%. The reliance upon definition of appointing authority, which has been defined in Rule 3 (a) as the Regional Joint Director, Medical Health and Family Welfare Department, and of determination of vacancies in Rule 14, providing for such determination by the appointing authority and intimation to the Commission the number of vacancies to be filled up during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6, will not make the cadres in the service regional cadres. The strength of the service and of each category of posts including in the cadre is to be determined by the Governor from time to time. The strength of service and of each category is given in Appendix 'A'. The selections by direct recruitment or by promotion have to be made in the ratio of 75:25 by the U.P. Public Service Commission. A combined select list in any year of recruitment is to be drawn under Rule 17 by both direct recruitment and by promotion and is to be prepared by taking the names of candidates from the relevant lists namely the lists of the candidates selected by the direct recruitment and by promotion in such manner that the prescribed percentage is maintained, the first name in the list being the person appointed by promotion and that appointments are to be made in the order in which the stand in the list prepared under Rule 14, 15 and 16 as the case may be. The seniority in Rule 21 is to be determined form the date of the order of substantive appointment, and if two or more persons are appointed together by the order in which their names are arranged in the appointment order and that seniority interse under sub-rule (2) of persons appointed directly on the result of any selection shall be the same as determined by the Commission. A comprehensive reading of the U.P. EXTENSION Educators Service Rules, 1995 would show that there is State wise cadre to which appointments are to be made by direct recruitment at 75% of the number of posts given in the Appendix 'A'. A common examination is to be held by U.P. Public Service Commission and that a common select list has to be drawn in the manner as given in which it is given in Rule 17 from which the appointments are to be made as provided in Rule 18 and that seniority is to be determined in accordance with Rule 21. The definition of the appointing authority in Rule 3 (a) and the determination of vacancies in Rule 14 by the appointing authority to be filled up during the course of the year as also the number of vacancies to be reserved for candidates belonging to SC, ST and other categories in Rule 6, will not make or allow the number of vacancies to be counted region wise. The State Government did not commit any error in making the requisitions of the vacancies available on the sanctioned posts and applied the rules of reservation on the total number of posts in the department of family welfare in the cadre for direct recruitment. The advertisement providing to fill up 546 posts and applying reservation in a manner in which there were 256 posts in general category, 158 in OBC, 121 in Scheduled Castes category and 11 in Scheduled Tribe category is in accordance with the reservation provided in the Act of 1994. The documents annexed to the counter affidavit would show that by letter dated 28th June, 2007 the Secretary, Public Service Commission, U.P. requested the Director General of Family Welfare, Government of U.P. to clarify as to whether rules of reservation will be applicable according to the vacancies requisitioned earlier or any amendment is to be made in terms of 50% rule or orders of the Supreme Court. It was pointed out in para 2, of the letter that out of 546 vacancies 256 have been requisitioned for general category, 158 for OBC, 121 for SC and 11 for ST categories, which makes the provision for reservation of more than 50% on the vacancies. The Commission found that out of 546 only 50% of the vacancies i.e. 273 could be reserved, whereas request was made for reserving 290 vacancies for OBC, SC and ST category posts. The State Government constituted a committee to look into the matter. The Committee formed an opinion that post of Health Education Officer is a post of regional cadre and that in special circumstances vacancies available in the regions were compiled and requisitioned for selection through the Commission. The applicability of the rules of reservation for the posts in state cadre and in the regional cadre would be different and that after collecting the data from each region it found in the meeting dated 10.12.2007, it applied applicability of rules of reservation region wise. The Committee searched a way out in applying the rules of reservation to the number of vacancies region wise, and found that out of 621 vacant posts 305 would fall in general category; 181 in OBC; 133 in SC and 2 in ST. The corrigendum issued in pursuance of requisitions after collecting the datas of the availability of vacancies in applying rules of reservation region wise suffers from a mistake in treating the cadre of the service to be region wise. The Rules of 1985 provide for a state service and not a regional service and thus calculation and requisition of vacancies did not require any modification. The Commission had sought clarification only with regard to applicability of rules of reservation, which could be easily explained from the judgment of the Supreme Court in R.K. Sabbarwal's case, according to which the number of vacancies on the posts in a requisition reserved for various categories under Rule 16 (4) of the Constitution of India, may vary provided it should not exceed the rule of 50% in the total number of posts in the cadre. In R.K. Sabbarwal Vs. State of Punjab, (1995) 2 SCC 245 the Supreme Court held in para 5 and 6 as follows:- 5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservation provided under the impugned Government instructions are to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/Scheduled Tribes and Backward classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation. "16% of the posts..." are reserved for members of the Scheduled Caste and Back ward classes. In a lot of 100 posts those falling at serial numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65, 72, 80, 87, and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Caste. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th, 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved categories is achieved. We see no justification to operate the roster thereafter. The "running account " is to operate only till the quota provided under the impugned instructions is reached and not thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Back ward Classes in the State services and is consistent with the demographic estimate base on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointeess/promotees occupy the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at Roster-points 1, 7, 15, retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation. 6. The expressions "posts" and "vacancies" often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation." (emphasis supplied) The interpretation of rules of reservation given by Supreme Court in R.K. Sabbarwal's case would make it apparent that until all posts in the cadre are filled up, the number of vacancies on the posts in the cadre filled up in any recruitment may exceed 50% rule but would not be unconstitutional. Sub Rule (5) of Rule 3 of the UP Act No.94 also provides that the roster will continue to apply until it is exhausted. Further even if for arguments sake the vacancies are calculated region wise, the calculation of the number of vacancies should not make any difference. The chart appended to the proceedings of the meeting and annexed to the counter affidavit (page 15) would show that there are a total number of 628 sanctioned posts in 17 regions and gives sanctioned posts for each region. Out of these 7 are filled up (1 Gen in Agra; 1 Gen in Allahabad; 3 out of which 1 Gen and 2 SC in Jhansi; and 1 each in Gen category in Meerut and Moradabad) leaving 621 vacancies. The chart does not show the deployment of 30 selected in the special recruitment of 31 (12 in OBC, 17 in SC and 2 in ST) in which 1 vacancy of ST was forwarded. The percentage rule in Pawan Kumar Tiwari's case has not been correctly applied and is in any case not attracted. There will hardly be a difference in the number of vacancies of unreserved and reserved categories if the percentage rule is applied. It thus appears that in order to justify 50% rule, ignoring R.K. Sabbarwal's case and Rule 3 (5) of the UP Act No.94, the Committee without taking into account the fact that 30 vacancies have been filled up in special drive, adopted a wrong criteria to calculate the vacancies. The entire approach of working out the vacancies and the issuance of corrigendum is thus erroneous and in violation of applicability of rules of reservation. The calculation in which 11 vacancies were reserved for ST category out of 621 sanctioned post, with one ST appointee in place was correct and legal method of calculation of reserved vacancies. The writ petition is allowed. The corrigendum dated 30.1.2008 issued by the Secretary, Public Service Commission as published in 'Amar Ujala' dated 31.1.2008 (Annex.7 to the writ petition) is quashed. The U.P. Public Service Commission will declare the result for the post of Health Education Officer after taking into account the reservation of 11 posts for Scheduled Tribe category in consonance with the Advertisement No.2 of 2005-06 as originally issued by the Public Service Commission, U.P. Allahabad ignoring the corrigendum dated 30.1.2008 and that the State Government will appoint the selected Scheduled Tribe candidates accordingly.;