Judgment · High Court · 2007

The first writ petition being W.P.(C) No. 1043/03 was allowed while the 9. second writ petition being W.P.(C) No. 2195/03 was dismissed. The matter was car ried on appeal by way of WA No. 348/04 and 349/04. The Division Bench set aside the judgment passed in the writ petitions and allowed the writ appeals. Conseque ntly, the first writ petition stood dismissed while the second writ petition sto od allowed. Operative part of the judgment in writ appeal is quoted below: & This observation of the Hon’ble Supreme Court further clarify the posi

#17. tion that when a Statute as it is admit of no ambiguity, question of looking int o the past practice would not arise as this would upset the provisions of the St atue. The case at hand is somewhat akin to this situation. The rules provides fo r two independent cadres without any provision for inchangeability, and these tw o cadres are the feeder cadres to the post of Sub-Divisional Agricultural Office rs. This alone rules out any scope for interpretation of the provisions of the s ervice Rules with the aid of past practice. Though the JSMS only have been cons idered for promotion to the post of Sub-Divisional Agricultural Officer so far, such practice cannot be superimposed on the provisions of the Rules. The right v ested on the incumbents to the cadre of AEOs under the Rules cannot be obliterat ed altogether. If the impugned interpretation is sustained, the AEOs will be lef t at lurch in perpetuity without any avenue for promotion. The argument that th e Senior AEOs will be transferred to the cadre of JSMS batch by batch and then c onsidered and promoted to the posts of Sub Divisional Agricultural Officer canno t salvage the situation. It is because the AEOs do not have any vested right of transfer to the cadre of JSMS under the Rules. They may or may not be transferre d by the State. We are, therefore, constrained to hold that the JSMS have failed in their bid to make out a case for themselves to the exclusion of the AEOs. (cid:28)18. In the result, both the appeals are allowed. Consequent thereupon, Writ pet ition (C) No. 1043 of 2003 filed by the JSMS is dismissed and the Writ Petition (C) No. 2425 of 2003 filed by the AEO is allowed in reversal of the impugned com mon judgment. It is directed that the upgraded 100 posts in the cadre of Sub-Div isional Agricultural Officers have to be filed up from the incumbents of both th e cadres of JSMS and AEOs in accordance with the provisions of the Rules. For th is purpose a ratio in the cadre of Sub-Divisional Agricultural Officer may be pr escribed by the State. The incumbents to the Cadre of JSMS who are holding the p osts on transfer are also declared eligible for consideration for promotion on t he basis of their rank, status and seniority as AEOs. (cid:29) From the aforesaid adjudication of the matter between the AEOs and the 10. JSMS, what has emerged is that the promotional post of SDAO are now to be filled up from amongst the incumbents of both the cadres of JSMS and AEOs in accordanc e with the provisions of the rules.

#11. As regards the upgraded 100 posts in the cadre of SDAO, they are to be f illed up from both the cadres of JSMS and AEO in accordance with the provisions of the rules. However, for the purpose, the ratio in the cadre of SDAO is to be prescribed by the Govt.

#12. Rule 13 of the Assam Agricultural Rules, 1980 makes the provision for ho lding of year wise selection for promotion. Upon a reference to Rule 3, 4, 11, 1 2 and 13 of the Rules, it is the case of the petitioners that there are two dist inct and separate cadres of AEOs and JSMS, although incumbents of the both cadre s are eligible for promotion to the post of SDAO. Further case of the petitioner s is that in case of non-holding of yearly selection, it is incumbent on the p art of the official respondents to prepare year wise penal on the basis of the y ear wise vacancies. In paragraph 13 of the writ petition, the petitioners have indicated the number of vacancies arose in different years. They are shown below : Sl. No. Period 1) Prior to October, 2001 2) November, 2001 3) 01.01.02 to 31.12.02 4) December, 2002 Vacancies Reasons for vaca 5 2 8 47 by retirement/death by death/retirement by death/retirement by promotion -------------------------------------- Total 62 With the aforesaid position, the next plea of the petitioners is relatin 13. g to adherence to 20 point Roster relating to reservation. In paragraph 15 of th e writ petition, the petitioners have stated that as per opinion rendered by the Legal Remembrancer of the State, the normal vacancies and the upgraded vacancie s are to be clubbed together applying the ratio in 3:2 for AEO and JSMS and also applying the formula relating to clearance of backlogs taking the normal and u pgraded vacancies together. It has been stated by the petitioners that as per th e said opinion of the Legal Remembrancer, the respondents have proceeded with t he matter in that manner which according to them is contrary to the aforesaid di rection of the Division Bench as well as the rules holding the field. Further ca se of the petitioner is that if the opinion rendered by the Legal Remembrancer i s to be accepted, same will lead to violation of the provision of the Assam Sche dule Castes and Schedule Tribes (Reservation of Vacancies in Service and Posts), Act 1978 and the Rules framed therein.

#14. Referring to Annexure- I and J office memoranda dated 28.08.01 and 14.07 .04 respectively, the petitioners have asserted that once the percentage of rese rvation is achieved, there is no question of falling back on backlogs. According to the petitioners, the respondents have committed mistake in calculating the p ercentage of reservation and applying the test of clearance of backlogs. Furthe r case of the petitioners is that if the procedure adopted by the respondents is allowed to stand, same will lead to excessive reservation. Showing the total ca dre of strength to be 62 (normal) and 100 (upgraded) and applying the ratio of 1 :4, the petitioners have contended that if altogether 648 incumbents which would naturally include AEOs as well, are considered for promotion to 162 posts, the n leaving aside the total cadre strength of 267 JSMS, 381 AEOs will also come in to the zone of consideration. In that case huge number of reserved category cand idates would score a march over the petitioners. Further case of the petitioners is that there is no question of applying the test of backlog in the newly creat ed 100 posts.

#15. The official as well as the private respondents have filed their counter affidavit denying the contentions raised in the writ petition. According to th em, when it has been held by the Division Bench that the incumbents in both the cadres, i.e. AEO and JSMS, although two separate cadres, are entitled to get con sideration for promotion as per the aforesaid service rules, there is nothing wr ong in considering the incumbents of both the cadres for promotion to the cadre of SDAO. According to them both normal as well as the upgraded promotional vacan cies are to be clubbed together for consideration of the case of the incumbents in both the cadres.

#16. The respondents have also supported the test of reservation policy sough t to be applied. In paragraph 37 of the affidavit in opposition filed by the res pondents No. 4 to 8, it has been stated that 7 promotional vacancies of SDAO aro se in 2001 and 55 vacancies arose in the year 2002. According to them, 100 upgra ded vacancies also arose in 2002. Thus, according to them, for 162 vacancies of SDAO, a combined selection is to be made.

#17. The official respondents in their affidavit have stated that 7 vacancies which arose prior to 2002, were also taken into account along with 55 vacanci es occurred in 2002. It has also been stated that a selection was conducted on 1 5.02.02 taking together all 162 posts (normal and upgraded). According to them, clubbing of 7 vacancies occurred prior in point of time along with 55 vacancies did not lead to any major loss and gain to either of the parties. In paragraph 13 of the affidavit filed by the official respondents, it has been stated that reservation roster has been maintained in the department w.e.f. 01.05.79 and as per the said register the department has already filled up 289 vacancies in the cadre of SDAO as per the respective roster points for reserved categories. It i s the specific stand of the official respondents that 100 upgraded posts are als o promotional posts in the rank of SDAO, so in case of filing up the same, clear procedure of selection as per existing rules, including the backlog etc. will have to be followed. In paragraph 17 of the said affidavit, it has been stated t hat the department has followed the provision of the Assam Schedule Castes and S chedule Tribes (Reservation of Vacancies in Service and Posts) Act, 1978 without exceeding the required percentage of reserved categories.

#18. I have heard Mr. D.K. Mishra, learned Sr. counsel assisted by Mr. B. Cho kraborty, learned counsel for the petitioners as well as Mr. N. Dutta, learned S r. counsel assisted by Mr. A.N. Choudhury and Mr. P. Deka, learned counsel for t he private respondents. I have also heard Ms. R. Chokraborty and Mr. B.J. Talukd ar, learned State counsel representing the official respondents. I have also gon e through the materials on record. From the respective pleadings and arguments of the parties, the followin Whether 100 upgraded posts of SDAO are to be clubbed along with normal 6 Whether in terms of Rule 13 of the Rules, year wise penal for filling u

#19. g questions/issues have arisen for determination. a) p the promotional vacancies of SDAO are required to be prepared b) 5 vacancies. c) le limit of 50%. d) ed percentage of reservation can be exceeded. e) icable to newly created 100 posts. Whether in the name of filling up of the backlog vacancies, the prescrib Whether carry forward formula relating to backlog vacancies will be appl Whether there is excessive reservation by way of exceeding the permissib

#20. Issue No. (a): Rule 13 of the Assam Agricultural Service Rules 1980 lays down the general procedure of promotion as per which in case of availability of vacancies, an obligation is cast on the Govt. to take steps for holding the se lection every year. As per the statement made in paragraph-10 of the affidavit f iled by the official respondents, out of 62 normal vacancies, 7 vacancies occurr ed prior to 2002, while 55 vacancies occurred in the year 2002. However, it is their stand that such 55 vacancies will have to be taken into account along wit h 100 vacancies purportedly created in the year 2002 by Annexure-C order dated 2 2.01.02.

#21. If the preparation of year wise penal is the requirement of Rule 13, th en in that case, a composite selection cannot be held for the aforesaid 7 (2001 ) + 55 (2002) vacancies. As per the requirement of Rule 13, the selection commit tee should be commenced on regular annual intervals to draw penal which could be utilized for making promotion against the vacancies occurred during the course of a year. Rule 13 lays down the detailed procedure in this regard. Very often the selection meeting is initiated after a vacancy has arisen 22. . This results in undue delay in filling up the vacancies causing dissatisfactio n among those who are eligible for promotion. It is always desirable rather mand atory that regular meetings of selection committee are held every year for each category of posts so that an approved select penal is available in advance in m aking promotion against the vacancies arisen every year. However, for the reason s beyond the control of the selection committee the selection cannot be held in a year(s), even though vacancies arose during that year(s), in the normal circum stance, the selection committee is to prepare year wise penal by placing the sel ect list of earlier year above the one for the next year and so on. This aspect of the matter has been discussed in the decision of the Apex Court reported in ( 1995) 4 SCC 246 (Vinod Kumar Sangal vs. Union of India and others) and (1997) 9 SCC 287 (Union of India vs. N.R. Banerjee)

#23. Applying the above test, the respondents cannot club the aforesaid 7 + 55 vacancies in a single selection and since the respondents have accepted the p articular plea relating to preparation of year wise penal, they will have to pre pare separate select list for 55 posts preceded by the select list for 7 pots w hich according to the respondents have occurred in 2002 and 2001 respectively.

#24. Issue No. (b): By Annexure (C) letter dated 22.01.02, the Govt. of Assa m in the Agricultural Department intimated the Accountant General (A & E), Assam relating to upgradation of 100 posts in the rank of JSMS to SDAO. Such upgradat ion is not automatic, but will be effective from the date of entertainment of u pgradation of the posts which again is dependent on simultaneous abolition of 10 0 posts of JSMS. Rule 13 of the Rules mandates preparation of yearly penal on th e basis of the likely number of vacancies to be filled up by promotion in the ne xt year. Before the end of each year, the Govt. is to make assessment of the lik ely number of vacancies. Such assessment could be made only against normal vacan cies and not against the contemplated upgraded vacancies as notified by Annexure -C dated 22.01.02. Further 100 vacancies were not in existence in the year 2002 . The vacancy would arise only upon abolition of 100 posts of JSMS with simultan eous promotion of the incumbents to the promotional post of SDAO. In this connec tion, the language applied in Annexure-C letter dated 22.01.02 has a significant bearing. In the letter it has been indicated that upgradation will come into fo rce w.e.f. the date of entertainment of upgraded posts. Thus, until and unless t he upgraded posts are entertained with simultaneous abolition of 100 posts of JS MS, it cannot be said that those 100 posts were in existence in 2002. Even other wise also there could not have been any visualization of those 100 pots in the p receding year in which the assessment of likely number of vacancies was to be ma de. In view of the above, I am of the considered opinion that 100 upgraded p 25. osts which are yet to come into existence should be excluded from the purview of 65 normal vacancies. Although there is no definite indication in this regard in the Division Bench judgment in the aforesaid writ appeals, but inference can be drawn from the operative part of the judgment extracted above.

#26. The Division Bench while holding that 67 normal vacancies of SDAOs are t o be filled up from amongst AEO and JSMS, has also held that for the upgraded 10 0 posts the incumbents of both the categories are entitled to get promotion in a ccordance with the provisions of the aforesaid Rules. However, the Govt. has bee n left to provide ratio for the purpose. If any ratio is to be provided for 100 upgraded posts, the said posts cannot be clubbed along with 65 normal vacancies. Be it stated here that the recruitment rules itself do not provide for any such ratio.

#27. Issue No. (c): As has been held in R.K. Sabharwal vs. State of Punjab re ported in (1995) 2 SCC 745, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of (cid:28)vacancy (cid:29) has no relevance in operating the percentage of reservation. By now i t is well accepted principle of reservation that the reservation cannot exceed t he ceiling limit of 50%. The Govt. has to apply the cadre strength as a unit in the operation of Roster in order to ascertain whether a given class/group is ad equately represented in service. The cadre strength as a unit also ensures that the upper ceiling limit of 50% is not violated. Further the Roster is to be post specific and not vacancy based.

#28. In R.K. Sabharwal (supra), the Apex Court vividly dealt with problematic areas relating to percentage of reservation, operation of Roster and the expres sion (cid:28)post (cid:29) and (cid:28)vacancy (cid:29) thus:- (cid:28)4. When a percentage of reservation is fixed in respect of a particular cadre a nd the roster indicates the reserve points, it has to be taken that the posts sh own at the reserve points are to be filled from amongst the members of reserve c ategories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appoi ntment to the said posts their number cannot be added and taken into considerat ion for working out the percentage of reservation. Article 16(4) of the Constitu tion of India permits the State Government to make any provision for the reserva tion of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a concl usion that the Backward Class/Classes for which the reservation is made is not a dequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representa tion in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because s ome of the members of the Backward Class have already been appointed/promoted ag ainst the general seats. As mentioned above the roster point which is reserved f or a Backward Class has to be filled by way appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considera ble number of members of a Backward Class. Have been appointed/promoted against general seats in the State Services may be relevant factor for the State Govern ment to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any num ber of appointees/promotees belonging to the Backward Classes against the genera l category posts the given percentage has to be provided in addition. We, theref ore, see no force in the first contention raised by the learned counsel and reje ct the same.

#5. We see considerable force in the second contention raised by the learned coun sel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account fro m year to year. The purpose of (cid:28)running account (cid:29) is to make sure that the Schedu led Cases/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of (cid:28)running account (cid:29) in the impugned instructions has to be s o interpreted that it does not result in excessive reservation. (cid:28)16% of the post s &. (cid:29) are reserved for members of the Scheduled Castes and Backward Classes. In a lot of 100 posts those falling at Serial No. 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 Sch eduled Castes. Roster points 26 and 76 are reserved for the members of the Backw ard 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 S cheduled Castes. To illustrate, first post in a cadre must go to the Scheduled C aste 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 opera tion of the roster then the result envisaged by the impugned instructions is ach ieved. In other words, in a cadre of 100 posts when the posts earmarked in the r oster for the Scheduled Castes and the Backward Classes are filled the percentag e of reservation provided for the reserved categories is achieved. We see no ju stification to operate the roster thereafter. The (cid:28)running account (cid:29) is to operat e only till the quota provided under the impugned instructions is reached and no t thereafter. Once the prescribed percentage of posts is filled the numerical te st of adequacy is satisfied and thereafter the roster does not survive. The perc entage of reservation is the desired representation of the Backward Classes in t he State Services and is consistent with the demographic estimate based on the p roportion worked out in relation to their population. The numerical quota of pos ts is not a shifting boundary but represents a figure with due application of mi nd. Therefore, the only way to assure equality of opportunity to the Backward Cl asses and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the rost er. The operation of the roster and the (cid:28)running account (cid:29) must come to an end th ereafter. The vacancies arising in the cadre, after the intial posts are filed, will pose no difficulty. As and when there is a vacancy whether permanent or tem porary 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 person s 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, i f the persons holding the post at points 8 to 14 or 23 to 29 retire then these s lots are to be filled from amongst the general category. By following this proce dure there shall neither be shortfall nor excess in the percentage of reservatio n.

#6. The expressions ’posts’ and ’vacancies’, often used in the executive ins tructions providing for reservations, are rather problematical. The order ’post’ means an appointment, job, office or employment. A position to which a person i s appointed. (cid:28)Vacancy (cid:29) 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 en able 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 r eservation has to be worked out in relation to the number of posts which form th e cadre-strength. The concept of ’vacancy’ has no relevance in operating the per centage of reservation. When all the roster pints in a cadre are filled the required percentage 7. of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong.

#10. We may examine the likely result if the roster is permitted to operate i n respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster, 14 posts at various roster points are filled from amongs t the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongs t the Backward Classes and the remaining 84 posts are filled from amongst the ge neral category. Suppose all the posts in a cadre consisting of 100 posts are fil led in accordance with the roster by 31.12.94. Thereafter in the year 1995, 25 g eneral category persons (out of the 84) retire. Again in the year 1996, 25 more persons beloging to the general category retire. The position which would emerge would be that the Scheduled Castes and Backward Classes would claim 16% share o ut of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 10 0 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary, if the roster is permitted to oper ative till the total posts in a cadre are filled and thereafter the vacancies fa lling in the cadre are to be filled by the same category of persons whose retire ment etc. cause the vacancies then the balance between the reserve category and the general shall always be maintained. We make it clear that in the event of no n-availability of a reserve candidate at the roster point it would be open to th e State Government to carry forward the point in a just and fair manner. 29. According to the petitioner taking into account 62 normal vacancies and 100 upgraded posts of SDAO, the permissible limit of reservation is as follows: S.C. ST (Plain) ST (Hills) 7% 10% 5% ------------------------------------------------

11.34 say 11 posts 16.20 say 16 posts 8.1 say 8 posts ---- 22% 35 posts

#30. However, according to the Govt. as reflected in its counter affidavit, the Roster Register has been maintained w.e.f. 01.05.79 in the department. In p aragraph-13 of the affidavit, it has been stated that the department has already filled in 289 vacancies in the cadre of SDAO showing the respective roster poi nts for reserved categories. From this statement coupled with the written instru ction furnished to the State Govt. by the Agricultural Department by its letter dated 25.05.07, while admitting that total percentage of reservation is 22%, but the same has been shown to be operative against 289 vacancies taking into accou nt the vacancy position since 1979.

#31. alculated the reserved category percentage as follows: By showing the aforesaid 289 vacancies from 1979, the respondents have c ST (Plain) SC ST (Hills) 10% 7% 5% 29 20 14

#32. cklog vacancies as 35 with the following back up: On the basis of the above calculation, the respondents have shown the ba Post Backlog From reserved category Reserved Officer promoted ST (P) SC 12 ST (H) Total 35 29 14 20 63 18 2 7 28 11 12

#33. According to the respondents, 50% ceiling limit is not applicable in ca se of backlog vacancies as the same are not within the purview of 50% limit. The y have shown calculation relating to percentage of reservation and backlog agai nst 162 vacancies as follow: Category Total Backlog Current ST (P) SC 24 ST (H) Total 72 11 12 12 35 17 8 12 37 28 20 From the aforesaid position what has emerged is that the respondents hav 34. e applied the percentage of reservation against the vacancies and not against th e posts which is clearly impermissible as per law laid down by the Apex Court in R.K.Sabharwal’s case.

#35. (2006) 8 SCC 212 observed thus: The Apex Court in the case of M. Nagaraj vs. Union of India reported in (cid:28)82. Before dealing with the scope of the constitutional amendments we need to r ecap the judgments in Indra Sawhney and R.K. Sabharwal. In the former case the m ajority held that 50% rule should be applied to each year otherwise it may happe n that the open competition channel may get choked if the entire cadre strength is taken as a unit. However, in R.K. Sabharwal this Court stated that the entire cadre strength should be taken into account to determine whether the reservatio n up to the quota limit has been reached. It was clarified that the judgment in Indra Sawhney was confined to initial appointments and not to promotions. The op eration of the roster for filing the cadre strength, by itself, ensures that the reservation remains within the ceiling limit of 50%.

#83. In our view, the appropriate Government has to apply the cadre strength as a unit in the operation of the roster in order to ascertain whether a given class /group is adequately represented in the service. The cadre strength as a unit al so ensures that upper ceiling limit of 50% is not violated. Further, roster has to be post specific and not vacancy based. (cid:29) In the aforesaid case dealing with the rule of (cid:28)carry forward (cid:29) the Apex 36. Court in reference to the Constitutional amendments observed that (cid:28)carry forwar d (cid:29)/ (cid:28)unfilled vacancy (cid:29) of a year can be kept out/excluded from the overall ceili ng of 50% reservation. In paragraph-96 of the judgment the Apex Court observed t hus: (cid:28)96. the Constitution (Eighty- first Amendment) Act, 2000 gives, in substance, l egislative assent to the judgment of this Court in R.K. Sabharwal. Once it is he ld that each point in the roster indicates a post which on falling vacant has to be filled up by the particular category of candidate to be appointed against it and any subsequent vacancy has to be filled up by that category candidate alone then the question of clubbing the unfilled vacancies with current vacancies doe s not arise. Therefore, in effect, Article 16 (4-B) grants legislative assent to the judgment in R.K. Sabharwal. If it is within the power of the State to make reservation then whether it is made in one selection or deferred selections, is only a convenient method of implementation as long as it is post based, subject to replacement theory and within the limitations indicated hereinafter. (cid:29) 37. ed thus: In State of UP vs. Pawan Kumar Tiwari reported in (2005) 2 SCC 10 observ (cid:28)9. There is yet another reason why the judgment of the High Court has to be mai ntained. The total number of vacancies was 93. Consequent upon the allocation o f reservation and calculation done by the appellants, the number of reserved sea ts would be 47, leaving only 46 available for general category candidates. Meani ng thereby, the reservation would exceed 50% which would be unconstitutional. Th e total number or reserved seats could not have been more than 46 out of 93.

#38. In view of the clear stand of the respondents that they have applied the percentage on reservation against the vacancies and not against the posts as a unit, the calculation made by the respondents for filling up the vacancies of th e SDAO earmarking the prescribed percentage on reservation on the basis of calc ulation of vacancies and not the posts, is not sustainable in law.

#39. Issue Nos. (d) and (e) : While it is the general rule that percentage of re servation cannot exceed 50%, but as observed in the case of M. Nagraj (supra), rule of 50% cannot be applicable in case of (cid:28)carry forward (cid:29) and (cid:28)unfilled vacanc ies (cid:29). Clubbing of the backlog vacancies with the current vacancies stands segre gated by the Constitution (Eighty first Amendment) Act, 2000. Once it is held that the cadre strength as the unit should be taken int 40. o account to determine whether the reservation upto the quota limit has been rea ched and that the percentage of reservation is to be fixed in respect of a parti cular cadre and the roster in case of reserved points and also that the cadre st rength is always measured by the number of posts comprising the cadre, the rule of backlog will apply only in respect of those posts and not to any newly create d posts. In the instant case, the Roster Register has been maintained from 1979 in respect of the existing posts/vacancies. There was no visualization of the 10 0 upgraded posts. Thus, the formula of backlog/carry forward/unfilled vacancies will have to be applied against the normal vacancies and not against the upgrade d vacancies. At the same time, percentage of reservation will apply in respect o f 100 upgraded vacancies as per its normal rule. From the counter affidavit, it appears that the respondents have conduct 41. ed the selection for promotion to the post of SDAO taking into account the norma l vacancies as well as the upgraded posts. No year wise penal has been prepared. Percentage of reservation has been applied against 289 vacancies as against the total cadre strength of 62/65 which is clearly in violation of the principles l aid down in the case of R.K. Sabharwal (supra). Further, as per the aforesaid D ivision Bench judgment of this Court, the Govt. in the particular department may also prescribed ratio of promotion from amongst the AEO and JSMS against 100 up graded posts. In such a situation, the respondents cannot implement the selectio n already conducted in violation of the underlying principles. Be it stated her e that the said selection was conducted prior to the earlier writ proceeding. During the course of hearing, it was emphasized by the learned counsel f 42. or the parties that the incumbents belonging to both the categories, i.e. AEO an d JSMS are long overdue for promotion to the post of SDAO. However, because of t he ongoing litigations, such promotions could not be given to them. Keeping in view that aspect of the matter, it is hereby directed that the respondents shal l conduct the selection afresh consistently with the observations made above and the entire process shall be completed on or before 30th November, 2007 includin g issuance of orders of promotion as per rules.

#43. ent indicted above, leaving the parties to bear their own costs. The writ petition is answered in the above manner and allowed to the ext