N.N.TIWARI, J. - (1.) THESE writ petitions pose the common questions based on identical factual backgrounds and with the consent of the parties, the same have been heard together and are being disposed of by this common judgment.
(2.) THE petitioners have made three fold prayers in these writ petitions: - (i) For declaring Section 4(6) of the Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. and OBC) Act, 2001 ultra vires, being violative of the provisions of Article 16 of the Constitution of India. (iii) For direction on the respondents not to grant promotion to the Scheduled Castes and Scheduled Tribes Officers in excess of their quota in pursuance of 85th Amendment of the Constitution of India contrary to the guidelines of the Hon'ble Supreme Court in the case of M. Nagraj and Ors. vs. Union of India and Ors. As agreed by learned counsel for the parties, W.P.(S) No. 3924/2007 has been taken as the lead case. The case briefly stated is that the petitioners are the Executive Engineers in the Water Resources Department, Government of Jharkhand. The said Executive Engineers are to be next promoted to the post of Superintending Engineer. There are 47 posts of Superintending Engineer in the Water Resources Department as on 1.1.2007.
(3.) THE State of Jharkhand came with a legislation for providing reservation to different classes, namely, Jharkhand Reservation of Vacancies in Posts and Services (S.C., S.T. and G.B.C.) Act, 2001 [hereinafter referred to as 'the said Act']. Section 4(6)(Ka) of the said Act has been challenged by the petitioners. The said Section provides that "in case of non -availability of suitable candidates from Scheduled Castes and Scheduled Tribes for appointment and promotion against the reserved vacancies, the reservation for them in the vacancies shall continue for three recruitment years and if suitable candidates are not available even in the third year, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled up by exchange shall be treated as reserved for the candidates of that particular category who are actually appointed.;