ANUPAL SINGH AND OTHERS versus STATE OF U.P THROUGH PRINCIPAL SECRETARY, PERSONNEL DEPARTMENT AND OTHERS

[2019] 12 S.C.R. 1071

ANUPAL SINGH AND OTHERS

STATE OF U.P THROUGH PRINCIPAL SECRETARY,PERSONNEL DEPARTMENT AND OTHERS

(Civil Appeal No.4815 of 2019)

SEPTEMBER 30, 2019

[R. BANUMATHI AND A.S. BOPANNA, JJ.]

Service Law: Selection process – Reservation policy – Postof Technical Assistant – Appellants as well as private respondentsapplied for and appeared in the written examination held in 2014 –As per U.P. Reservation Act, specific percentages of vacancies werereserved for different categories – It was brought to notice of StateGovernment that there was wrongful calculation of category-wisevacancies in the earlier requisition and, therefore, the earlierrequisition was required to be revised – State Government by orderdated 20.08.2014, re-worked the vacancies for differentcategories of persons and sent the revised requisition for thevacancies for different categories to UP Public ServiceCommission (UPPSC) after adjustment of diploma holders against‘general category’ – Based on revised requisition, UPPSC declaredthe result of written examination, wherein appellants as well asprivate respondents were declared successful – Thereafter, UPPSCissued O.M. dated 12.10.2014 specifically mentioning the numberof vacancies to be filled up in various categories inconsonance with order dated 20.07.2014 – Successful candidatesappeared in interview on 27.10.2014 and finally result of select listcandidates was declared on 21.05.2015 – Private respondents didnot qualify – Unsuccessful candidates filed writ petitions beforeHigh Court challenging the validity of O.M. 12.10.2014 and theresult declared on 21.05.2015 and praying for quashing the sameand for preparation of result afresh without giving effect to O.M.12.10.2014 – The impugned result was also assailed on the groundthat it contravened s.3(1) of UP Reservation Act, 1994 and r.15(3)of UP Subordinate Agriculture Services Rules, 1993 and also thatthe percentage of reservation to SC/ST and OBC categories crossedthe upper limit of 50% – Held: Revised requisition dated 20.8.2014and OM dated 12.10.2014 was valid since it was only intended to

Arectify wrongful calculation of number of vacancies in differentcategories and to comply with requisite percentage of quota ofreservation in different categories as per 1994 Act – By virtue ofr.15 and r.6 of UP Subordinate Agriculture Services Rules, 1993(Agriculture Service Rules, 1993), the Recruitment Authority isempowered to rectify the wrongful calculation and make revisedBrequisition of number of vacancies in different categories which isin accordance with the provisions of UP Reservation Act, 1994 –High Court was not right in saying that the diploma holders oughtnot to have been absorbed against the “General category” so as toalter the advertised number of posts against the “General category”C– Absorption of diploma holders were required to be done onlyagainst the “General quota” – Revising the number of vacancies indifferent categories to satisfy reservation quota scheme as per UPReservation Act, 1994 would not amount to changing the rules ofthe game after the commencement of the selection process – Havingparticipated in the interview and when they failed in the finalDselection, it was not open to the private respondents/intervenors toturn around and challenge the revised notification dated 12.10.2014and the final select list dated 21.05.2015 – The filling up of theunfilled horizontal reservation by the candidates from therespective vertical reservation is in accordance with the policy ofEthe government and the same cannot be faulted with – Uttar PradeshPublic Services (Reservation for Scheduled Castes, Scheduled Tribesand Other Backward Classes) Act, 1994.Service law: Selection process – Reservation scheme –Appointment letter not issued to 906 candidates – Plea to exerciseFpower under Art.142 of the Constitution of India – The 906candidates were not issued the appointment orders in order to keepthe appointment within the permissible percentage of reservationas per UP Reservation Act, 1994 – These 906 candidates who wereleft out and were not issued appointment orders were ranked lowerin the merit list than the last selected candidate in their respectiveGcategory under the reservation limit as identified by the PersonnelDepartment, therefore appointment orders were not issued to them– This cannot be said to be arbitrariness or discrimination asselection of candidates was on the basis of the merit list –Therefore, power under Art.142 of the Constitution of India cannot

be exercised to issue direction to the State to issue appointmentorders to 906 candidates – Constitution of India – Art.142.

Service law: Selection process – It is settled law that aperson having consciously participated in the interview cannot turnaround and challenge the selection process – Having appeared inthe interview without any demur or protest, it is not open to thecandidates to challenge the selection process on the ground thatthere was modification in the number of vacancies in differentcategories and they are estopped by the principle of estoppel fromchallenging the same – Doctrine of estoppel.

Service law: Selection process – It is fairly well-settled thatthe selected candidates do not have any indefeasible right to beappointed – Merely because the names of candidates were includedin the provisional select list, they do not acquire any indefeasibleright to be appointed.

Doctrines/Principles: Doctrine of res judicata – Batch of writpetitions disposed of by High Court by common judgment containingcommon operative portion of judgment – Appeal filed in few writpetitions – Decision of Supreme Court – Whether judgment renderedin other writ petitions by High Court having not been challenged,have attained finality and operate as res judicata – Held: Thedecision of Supreme Court is binding on all the writ petitionersbefore High Court even though they were not parties in the appealbefore the Supreme Court.

Allowing the appeals, the Court

HELD:

1. Revised requisition dated 20.08.2014 and OfficeMemorandum dated 12.10.2014 notifying revised vacancies indifferent categories in consonance with the provisions of UPReservation Act, 1994 and UP Subordinate Agriculture ServiceRules, 1993

1.1 On the basis of the government order dated 20.08.2014,the Department of Agriculture sent the revised requisition tothe UP Public Service Commission (UPPSC). The declaration ofresult of the written examination was issued based on the revisedrequisition of the posts. The UPPSC acted on the revised

Arequisition of the Government dated 20.08.2014. Before thecandidates were called for interview, Office Memorandum dated12.10.2014 was issued by the UPPSC revising the number ofvacancies for different categories. The UPPSC has thus nottravelled beyond the requisition sent by the Government. [Para24, 25] [1096-F; 1097-B-C]B

1.2 The Agriculture Service Rules, 1993 clearly stipulatethat it is for the Recruitment Authority to determine the numberof vacancies to be filled during the year and would also determinethe number of vacancies for Scheduled Castes, Scheduled Tribesand other category candidates under Rule 6. On noticing thatCthere was wrongful calculation of the category-wise vacancy, theRecruitment Authority is empowered to rectify the wrongfulcalculation and make revised requisition which is in accordancewith the provisions of UP Reservation Act, 1994 and AgricultureService Rules, 1993. [Para 29] [1099-E-F]

R.K. Sabharwal and Others v. State of Punjab andOthers(1995) 2 SCC 745 : [1995] 2 SCR 35

–relied on.

1.3 Revising the number of vacancies in OBC category as2030 does not violate the right of the General category candi-Edates because the State Legislature has enacted the Reserva-tion Act No.4 of 1994 providing for reservation, keeping in mindthe parameters of Article 16(4) of the Constitution of India. Byrevising requisition, the State has endeavoured to achieve theobject of the reservation by working out the vacancy for selec-Ftion of the posts in question without causing any prejudice to theGeneral category candidates. The revised requisition so madewas within the purview of the competency of the State in order toachieve the object of the UP Reservation Act, 1994. Moreover,the total number of vacancies have not been changed or modi-fied. [Para 32] [1101-B-C]

1.4 The category-wise vacancy position was changed aftera meeting of all concerned was held i.e. representatives of theKarmik Department as well as of representatives of theAdministrative Department and it was found that wrongcalculation of category-wise vacancy had been sent earlier. If the

original requisition dated 22.10.2013 was to be retained, it wouldhave resulted in anomalies of the category-wise posts therebycontravening the provisions of the UP Reservation Act, 1994.Hence, the revised requisition was sent on 20.08.2014 from theAdministrative Department to the Director, Agriculture who inturn communicated the same to the UPPSC. By the revisedrequisition of vacancies for various categories, there is noviolation of any rules; on the other hand, it is only to rectify thecalculation of vacancies in different categories and to comply withthe requisite quota of reservation in different categories as perUP Reservation Act, 1994. This aspect was not properlyappreciated by the High Court. [Para 34] [1101-F-H]

2. Absorption of the Diploma Holders

The earlier requisition was sent showing only 566 vacanciesagainst the OBC quota, while in fact, it should have been 2030,as all the diploma holders were appointed against the Generalquota and they have not been appointed against the OBC quota.At the time of absorption of the diploma holders in the year 1998,there was no provision for reservation for Backward Classcategory in the concerned department; only by U.P. Reservation(Amendment) Act, 2002, the reservation was extended to theconcerned department and therefore, the appointees/diplomaholders have to be considered only against the “general quota”candidates. As seen from the affidavit filed by the Deputy Director,Agriculture (Training), the diploma holders were not required tobe counted against OBC quota; by wrongful calculation, theyhave been adjusted against the OBC quota which is notpermissible in law as reservation cannot be grantedretrospectively. By the revised requisition, the Governmentsought to rectify this mistake which resulted in alteration innumber of vacancies available against certain categories. Suchrectification of mistake by Government cannot be faulted nor canthis be ground for recalling the advertisement in question andissuing fresh one. The variation in number of vacancies against“General quota” was only because of the absorption of the diplomaholders against the “General quota” and rectifying the mistakeof adjustment against “OBC vacancies”. [Paras 37, 38][1102-E-F; 1103-D-G]

A3. O.M. dated 12.10.2014 revising the vacancies category-wise – whether amounts to changing the rules of the game afterthe commencement of the selection

3.1 In the instant case, only wrongful calculation in thenumber of vacancies in different categories had been correctedBin order to satisfy the percentage of reservation against variouscategories as per the provisions of UP Reservation Act, 1994.Such correction cannot be said to changing the rules or basis ofselection. The eligibility criteria was not changed. The diplomaholders were wrongly counted against the vacancies in OBCcategory; while they could not have been counted against OBCCcategory and while doing so, wrongful calculation had beenarrived and the same has to be corrected by counting the diplomaholders against the general category. [Paras 42, 44] [1105-D-E;1106-D-E]

K. Manjusree v. State of Andhra Pradesh and AnotherD(2008) 3 SCC 512 : [2008] 2 SCR 1025 ; HemaniMalhotra v. High Court of Delhi (2008) 7 SCC 11 :[2008] 5 SCR 1066 – distinguished.

3.2 Instruction No.7 in the advertisement dated 22.10.2013stipulated that the number of vacancies may increase or decrease.EAgriculture Service Rules, 1993 also clearly stipulated theprerogative of the government to determine the number ofvacancies in accordance with the rules. The writ petitioners whoare unsuccessful candidates have not demonstrated as to howthey were prejudicially affected by the change in number ofFvacancies against “General category” and “OBC category”.Notification by the UPPSC dated 12.10.2014 is based upon therevised requisition of the vacancies by the order of theAdministrative Department dated 20.08.2014. This would notamount to changing the rules of the game after the selectionprocess had commenced nor it had affected the selection processGby changing the eligibility criteria. [Paras 45, 48, 49] [1108-B-D]

Tej Prakash Pathak and Others v. Rajasthan High Courtand Others (2013) 4 SCC 540 – relied on.

4. Having participated in the interview, the privaterespondents cannot challenge the Office Memorandum datedH

12.10.2014 and the selection.

It is settled law that person having consciouslyparticipated in the interview cannot turn around and challengethe selection process. The candidates who appeared in theinterview were well aware about the modification/revision innumber of vacancies of Technical Assistants in differentcategories. The private respondents/intervening applicants haveappeared in the interview with their eyes wide open regardingthe modified vacancies to be filled up in various categories of theposts. Having appeared in the interview without any demur orprotest, it is not open to the candidates to challenge the selectionprocess on the ground that there was modification in the numberof vacancies in different categories and they are estopped by theprinciple of estoppel from challenging the same. [Paras 50, 54][1108-E-F; 1110-G-H; 1111-A]5.Unfilled vacancies of Horizontal Reservation filled bycandidates of vertical reservation Contention of the privaterespondents is that as per the statutory requirement, thehorizontal reserved vacancies were unfilled and those unfilledvacancies of horizontal category were filled by vertical reservationcandidates/other category candidates, which is in violation of thestatutory provisions vitiating the selection process. The UP PublicService Commission furnished the details as to the number ofvacancies reserved for horizontal category and the number ofcandidates found suitable and placed in the respective categories.On behalf of UP Public Service Commission, it was submittedthat one of the policies of the State Government regardinghorizontal reservation is that, if the suitable candidates for fillingthe vacancies reserved for such posts of horizontal reservationare not available and the same are not carried forward; they arefilled up by other suitable candidates from amongst the candidatesbelonging to vertically reserved categories according to theirmerit. It was submitted that unfilled horizontal reservationvacancies were thus filled up by suitable candidates of respectivevertical categories according to their merit which is as per thepolicy of the government. The High Court was not right in findingfault with the filling up of vacancies reserved for horizontalreservation with other candidates of respective verticalreservation. [Para 56] [1111-D-E; 1112-A-C]

1078SUPREME COURT REPORTS

AMadan Lal and Others v. State of J&K and Others(1995) 3 SCC 486 : [1995] 1 SCR 908;K.H. Siraj v.High Court of Kerala and Others (2006) 6 SCC 395:[2006] 2 Suppl. SCR 790;Union of India and Othersv. S. Vinodh Kumar and Others (2007) 8 SCC 100 :[2007] 10 SCR 41;Sadananda Halo and Others v.BMomtaz Ali Sheikh and Others (2008) 4 SCC 619:[2008] 3 SCR 497 – relied on.

6. Plea of res judicata

6.1 The respondents have sought to invoke the principlesCof res judicata by contending that the common judgment dated10.02.2017 passed by the High Court involved eighty-eightpetitions which were allowed with the direction specified in theimpugned judgment. Out of twenty-one appeals filed before thisCourt, the judgment of the High Court passed in six writ petitionsonly has been challenged; other matters have not beenDchallenged either by the State or by the appellants. It wascontended that when the appellants have not challenged thecommon judgment rendered in all the eighty-eight writ petitionsand in the present appeals, only the judgment rendered in Writ-C No.34196 of 2015 and few other writ petitions are challenged,Ethe judgment rendered in other writ petitions having not beenchallenged, have attained finality and thus, operate as res judicata.The above contention does not merit acceptance.[Paras 57, 58] [1112-D-G; 1113-A]

6.2 In the instant case, before the High Court, theFcontentions raised were the same and common arguments wereadvanced. The High Court dealt with the batch of writ petitionsand disposed all of them by common judgment. Since it is acommon judgment with common reasonings, the present batchof appeals would not result in any inconsistent decree or orderas all of them arise out of the common judgment containingGcommon operative portion of the judgment. Thus, submission isliable to be rejected. In M/s Shenoy case, number of writpetitions were allowed by the High Court. However, the Statechose to file appeal only in one case which came to be allowed bythe Supreme Court in the said case. In that fact situation, thisHCourt took the view that the decision of this Court was binding

on all the writ petitioners before the High Court even thoughthey were not the respondents in the appeal before the SupremeCourt. [Paras 60, 61] [1113-F-H; 1114-A-B]

M/s Shenoy and Co., Represented by its partner BeleSrinivasa Rao Street, Bangalore and Others v. Commer-cial Tax Officer, Circle II, Bangalore and Others(1985) 2 SCC 512 : [1985] 3 SCR 659 ; Director ofSettlements, A.P. and Others v. M.R. Apparao and An-other (2002) 4 SCC 638 : [2002] 2 SCR 661;FidaHussain and Others v. Moradabad Development Au-thority and Another(2011) 12 SCC 615 : [2011] 9 SCR290 – relied on.

6.3 Before the High Court in several writ petitions,unsuccessful candidates challenged the revised notification dated12.10.2014 and also the result dated 21.05.2015 published on22.05.2015. All the writ petitions were disposed of by the commonjudgment. Thus, the contentious issues raised by the parties stooddetermined on the same set of facts and on the same reasonings.There is no merit in the contention that the judgment passed bythis Court would bind only the parties in Writ-C No.34196 of2015 and that the other judgments passed by the High Courtwould stand and operate as res judicata. As held in M/s Shenoyand Co. and other judgments, to do so is to ignore the bindingnature of judgment of this Court under Article 141 of theConstitution of India. [Para 63] [1115-F-H]

7. Re: Contention – Appointment letters not issued to 906candidates and plea to exercise power under Article 142 of theConstitution of India:

7.1 After the interview was completed, the UPPSC hasselected 6599 candidates and the category-wise details of thecandidates so recommended by the Commission. The UPPSChas withheld the result of 29 candidates. The recommendationso made by the UPPSC was in excess of the permissiblepercentage of reservation as per UP Reservation Act, 1994. Infact, this was one of the grounds of challenge in the writ petitionto assail the select list. In the counter filed by the PrincipalSecretary, Government of UP, it is stated that change in the

Acategory-wise vacancies was further scrutinised in terms of UttarPradesh Public Services (Reservation for Scheduled Castes,Scheduled Tribes and Other Backward Classes) Act, 1994. Itwas found that harmonious construction of its various sectionswas needed to be taken. In the counter affidavit, it is stated thatthe total of 6628 vacancies was exceeding the demarcatedBpercentage. Thereafter, the application of horizontal reservationfor dependents of Freedom Fighters, Ex-Servicemen, Disabledpersons and Women was proposed. [Paras 66, 67] [1116-H; 1117-A, C-E; 1118-A]

7.2 Writ Petition No.62112/2015 was filed by few of theCsuccessful candidates for issuance of appointment letter and theHigh Court vide its order dated 15.12.2015 directed the officialrespondents to issue appointment order. The High Court furtherclarified that any such appointment made as well as the select listshall abide by any order which may be passed by the Division

DBench. Pursuant to the said order, the Chief Secretary,Government of UP by its letter dated 22.12.2015 gave directionsto the Department that appointment orders be issued to theselected candidates and that the appointment should abide bythe final decision of the court. Accordingly, the appointmentorders were issued to the selected candidates on 30.01.2016.EThe appointments were made subject to the outcome of the writpetition. Thus, total of 5669 candidates were issued appointmentorders; the appointment orders were withheld for 24 candidatesas the documents were withheld by UP Public ServiceCommission. [Para 68] [1118-C-D, G-H]F7.3 The 906 candidates who were left out and were notissued appointment orders were ranked lower in the merit listthan the last selected candidate in their respective category underthe reservation limit as identified by the Personnel Department,therefore appointment orders were not issued to them. ThisGcannot be said to be arbitrariness or discrimination as selectionof candidates was on the basis of the merit list. Further, therevised requisition dated 20.08.2014, on the basis of which theimpugned office memorandum was issued itself was case ofexcessive requisition, that is, beyond the permissible limits setout by the UP Reservation Act, 1994. The direction toHaccommodate the surplus candidates cannot be passed as that

would be in excess of the permissible limit as prescribed by theAct and would be in violation of prescribed limits of reservationas per the UP Reservation Act, 1994. In exercise of power underArticle 142 of the Constitution of India, if direction is issued toappoint 906 candidates, it will be crossing the limits of 50%reservation which would be violation of the constitutionalprovisions and the UP Reservation Act, 1994. [Paras 69, 70] [1119-B, C-E]

7.4 It is fairly well-settled that the selected candidates donot have any indefeasible right to be appointed. Merely becausethe names of candidates were included in the provisional selectlist, they do not acquire any indefeasible right to be appointed.Merely because UPPSC has recommended the names of 906candidates, they do not acquire any indefeasible right for beingappointed. The present vacancies i.e. 4838 and the availablevacancies i.e. 2779 are the future vacancies which are to be filledup by fresh advertisement and by participation of all the eligiblecandidates including the 906 candidates and other unsuccessfulcandidates. 2779 vacancies existing as on date, which are thevacancies as on date i.e. in 2019 cannot be filled up by thecandidates who got selected pursuant to the advertisement in2013-2014. [Paras 71, 75] [1119-G-H; 1120-A; 1121-E-F]

State of Bihar and Others v. Amrendra Kumar Mishra(2006) 12 SCC 561 : [2006] 6 Suppl. SCR 650 –relied on.

Union of India and Others v. Permanand Singh (1999)SCC (L&S) 625;D.M. Premkumari v. Divisional Com-missioner, Mysore Division and Others (2009) 12 SCC267 : [2009] 1 SCR 1094 – referred to

8. Article 142 of the Constitution of India confers widepower upon the Supreme Court to do complete justice betweenthe parties. Though the powers conferred on the Supreme Courtby Article 142 are very wide, the same cannot be exercised topass an order inconsistent with express statutory provisions ofsubstantive law. In the case in hand, as per the provisions ofUttar Pradesh Public Services (Reservation for Scheduled Castes,Scheduled Tribes and Other Backward Classes) Act, 1994,specific percentages of vacancies have been reserved for different

Acategories. In exercise of power under Article 142 of theConstitution of India, no direction can be issued to the State ofUP to issue appointment orders to the 906 candidates.[Para 76] [1121-G; 1122-B-D]

Ramji Veerji Patel and Others v. Revenue DivisionalBOfficer and Others (2011) 10 SCC 643 : [2011] 14 SCR821;Supreme Court Bar Association v. Union of Indiaand Another (1998) 4 SCC 409 : [1998] 2 SCR 795 –relied on

Union of India and Others v. O. Chakradhar(2002) 3CSCC 146 : [2002] 1 SCR 1091; Poonam v. State ofUttar Pradesh and Others(2016) 2 SCC 779 : [2015]14 SCR 565 ;Sri Gangai Vinayagar Temple andAnother v. Meenakashi Ammal and Others (2015) 3 SCC624 : [2014] 12 SCR 845 ; N.T. Devin Katti and Othersv. Karnataka Public Service Commission and OthersD(1990) 3 SCC 157 : [1990] 2 SCR 239 ; Governmentof India through Secretary and Another v. Ravi PrakashGupta and Another (2010) 7 SCC 626 : [2010] 7 SCR851;Madan Mohan Sharma and Another v. State ofRajasthan and Others (2008) 3 SCC 724 : [2008] 3ESCR 232 ; C. Channabasavaih v. State of Mysore AIR1965 SC 1293 : [1965] SCR 360 – referred to.

ANUPAL SINGH v. STATE OF U.P THR. PRINCIPALSECRETARY, PERSONNEL DEPTT.

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4815 of

From the Judgment and Order dated 10.02.2017 by the High Courtof Judicature at Allahabad in Writ-C No. 34196 of 2015

With

Civil Appeal Nos.4817/2019, 4816/2019, 4819/2019,4818/2019, 4821/2019, 4820/2019, 4830/2019, 4829/2019, 4833/2019,4825/2019, 4827/2019, 4834/2019, 4828/2019, 4824/2019, 4835/2019,4822-23/2019, 4836/2019, 4826/2019, 4832/2019 and 4831/2019

P.S. Patwalia, M. Karpaga Vinayagam, Guru Krishna Kumar,Ms. Mahalakshmi Pavani, Ms. Vibha Datta Makhija,Sr.Advs., PradeepKumar Yadav, Ms. Harshika Verma, Akchhay Chadha, Sanjeev Malhotra,G.S. Mani, Nitin Kumar, G.D. Ahmed, G. Balaji, Ms. Shiva Vijaya Kumar,Divyanshu, Suyash Srivastva, Modhumay Misra, Satyendra KumarMishra, Ravindra Sadanand Chingale, Prashant Shukla, Praveen Gaur,Priyanshu Agarwal, Ms. Aadiya Mishra, A. Subba Rao, Yatish Mohan,Dr. Kedar Nath Tripathy, Mehul M. Gupta, Abhishek Kumar Saroj, R.P. Gupta, Yatish Mohan, Ms. Vinita Y. Mohan, Ms. Manju Jetley, Alok

ASingh, Dr. Amarendra Pratap Yadav, Abhishek Singh and Ms. ManjuSharma Jetley, Advs. for the Appellants.

S.R. Singh,Sr.Adv. Adarsh Upadhyay, Ms. Sunita Pandit, KrishnaKumar Yadav, Alok Mishra, Raghvendra Upadhyay, Ms. Purnima Jain,Ajay Kumar, Rajesh Goyal, Alok Mishra, Amarendra Pratap Yadav,BAbhishek Singh, Ms. Khushboo Vinodray Malkan, Anil Nauriya,Ms. Sumita Hazarika, Ms. Ipsita Behura, K. Parameshwar, M.V.Mukunda, Sunil Kumar Singh, Amit Kumar Srivastava, Hariom SharanSingh, Ms. Sofia Begum, Dr. Vinod Kumar Tewari, Sandeep Kr. Dwivedi,Awadhish Kumar, Pradeep Kr. Dwivedi, Satyam Pandey, Ms. AntaryamiUpadhyay, Rutwik Panda, Abhishek Upadhyay, Ms. Mridula RayCBharadwaj, Binay Kumar Jain, Hitesh Kumar Sharma, Bijender SinghChoudhry, Dr. (Mrs.) Vipin Gupta, Shrish Kumar Misra, Ankit Yadav,Ms. Deepika Mishra, Bimlesh Pandey, M/s.Sheenu Chauhan, AjayKumar Singh, Dharm Singh, Karunakar Mahalik, Ms. Ruchira Goel,Abhishek Raj, Nilendra Pratap Singh, Shailendra Pratap Singh, Ms. NehaDSingh, Prithvi Pal, Ms. Rekha Rani Dey, Siddharth Kumar, Ms. DivyaRoy, Satyajeet Kumar, Udayaditya Banerjee, Susheel Tomar, SanjeevMalhotra, Balraj Dewan, Dinesh Kr. Tiwary, Ms. Anita Pandey, Ms.Rajmala Dohare, Ms. Shama Sharma, Chandan Kr., Santosh KumarTripathi, Lakshmi Raman Singh, Ms. Anita Tripathi, Ms. Shweta Yadav,Ankur Yadav, Anil Kaushik, Anurag Singh, Anil Kumar Mishra, BipinEBihari Singh, Alok Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. BANUMATHI, J.

1 These appeals arise out of the judgment dated 10.02.2017 inFWrit-C No.34196 of 2015 and batch matters passed by the High Courtof Judicature at Allahabad in and by which the High Court while uphold-ing the result of written examination for the post of Technical Assistant-Group-C Agriculture Department, quashed selection process subsequentto the written examination and directed the Principal Secretary, State ofGU.P. to send requisition to the Uttar Pradesh Public Service Commissionon the basis of quantifiable data and cadre strength as well as actualpersons working in different categories so that the interview may beconducted afresh and complete the selection.

2. Brief facts which led to filing of these appeals are as under:-

The Uttar Pradesh Public Service Commission issued anadvertisement No.A-5, E-1/2013 dated 22.10.2013 inviting applicationsfor 6628 vacancies of Subordinate Agriculture Services, Cadre-lll(Technical Assistant Group-C). In the said advertisement for the totalrequisitioned 6628 vacancies, category-wise vacancies are as under:-

Advertisement Number Vacancies in Subordinate AgricultureServices, Cadre-III (Technical Assistant Group-C)

Horizontal reservation in original advertisement is as under:-

The appellants as well as the private respondents applied for andappeared in the written examination held on 30.03.2014. As per the UttarPradesh Public Services (Reservation for Scheduled Castes, ScheduledTribes and Other Backward Classes) Act, 1994 (for short “UPReservation Act, 1994”), specific percentages of vacancies have beenreserved for different categories viz., (a) in the case of Scheduled Castes– 21% (b) in the case of Scheduled Tribes – 2% and (c) in the case ofOBC–27%. It was brought to the notice of the State Government thatthere was wrongful calculation of category-wise vacancies in the earlierrequisition and therefore, the earlier requisition was required to be revised.After detailed inquiry as to the cadre strength of Technical Assistant –Group and the actual working strength of persons in differentcategories, it was found that initially the number of requisitioned candidatesin the category of General/Unreserved and OBC were wronglycalculated. It was noticed that the diploma holders who were required tobe appointed against “Unreserved quota”; but were wrongly appointedagainst the “OBC quota” and the same was to be rectified. Accordingto the State, after adjustment of diploma holders against “GeneralCategory” and in order to fulfill the requirements of constitutional and

Astatutory mandate of reservation, the State Government has reworkedthe vacancies for different categories of persons and sent the revisedrequisition for the vacancies for different categories. The StateGovernment after taking opinion of the Department of Personnel videits order dated 20.08.2014 approved the revised vacancies for differentcategories of persons in accordance with the applicable reservation rulesBand accordingly, revised the requisition. Based on the said order dated20.08.2014, Department of Agriculture vide its letter No.AC/101 dated20.08.2014 sent the revised requisition for 6628 posts to the UP PublicService Commission as under:-

Horizontal reservation in amended requisition is as under:

Based upon the above revised requisition, on 15.09.2014, UP PublicService Commission declared the result of the written examinationwherein, both the appellants as well as the private respondents weredeclared successful. After declaration of the result of written examination,Fthe UP Public Service Commission issued an Office Memorandum dated12.10.2014 notifying 2515 posts for Unreserved/General category; 1882posts for SC category; 201 posts for ST category and 2030 posts forOBC category in consonance with the government order dated20.08.2014. The successful candidates who cleared the writtenexamination appeared for interview held from 27.10.2014 onwards.GFinally, when the result of select list candidates was declared on21.05.2015, the private respondents did not qualify.

3. Number of writ petitions came to be filed before the High Courtby the unsuccessful candidates against respondents No.1 to 4 and byimpleading some of the successful candidates assailing the validity of

the Office Memorandum dated 12.10.2014 and the result declared on

21.05.2015 praying that they be quashed. They further prayed for directionto respondents No.1 to 4 to prepare the result afresh without givingeffect to Office Memorandum dated 12.10.2014. It was contended thatchange in the number of vacancies in different categories is illegal andthe same amounts to changing the rules of the game in the middle of theselection process. The impugned result was also assailed on the groundthat it is in contravention to Section 3(1) of UP Reservation Act, 1994and Rule 15(3) of UP Subordinate Agriculture Services Rules, 1993(Agriculture Service Rules, 1993) and that the percentage of reservationto SC/ST and OBC categories crossed the upper limit of 50%.

4. After referring to decisions on the aspect of reservation, videthe impugned judgment, the High Court allowed the writ petitions interalia holding as under:-

The entire maneuvering in the instant case has taken place

in the garb of diploma holders wherein, 1749 diploma holdersin the department were adjusted/regularized in the year 1998.Even at the time of their regularization, their heads werecounted and the same is reflected from their regularizationorders and once their heads were already counted qua theirrespective categories and reserved category of personsespecially OBC adequately represented, there was nooccasion for putting all the diploma holders against the opencategory.

After the declaration of result of written examination on15.09.2014, changing the number of vacancies for differentcategories amounts to violation of Rule 15(3) of AgricultureService Rules, 1993 during the pendency of the advertisementand thus, depriving 3303 general category candidates even toappear in the interview and allowing 4392 more candidatesof OBC category to appear for interview by bringing them inthe zone of consideration for the selection, amounts to changingthe rule of the game during the process of selection.

The Commission declared the final result on 21.05.2015

wherein, 88% candidates belonging to reserved categorieshave been shown to be selected whereas, only 12%candidates under open category have been selected and the

1088SUPREME COURT REPORTS

entire selection is in contravention to Section 3(1) of UPReservation Act, 1994 and the Rule 15(3) of the AgricultureService Rules, 1993.

On the above findings and other reasonings, the High courtallowed the writ petitions by holding that subsequent to the declarationBof the result of written examination, the entire selection is vitiated and assuch, the same cannot be sustained. Placing reliance upon Union ofIndia and Others v. O. Chakradhar(2002) 3 SCC 146, the HighCourt held that when the court comes to the conclusion that theselection is tainted, there is no necessity to serve individual notices andas such, the entire selection can be cancelled. The High Court issued aCdirection to the Principal Secretary, Government of U.P. to send freshrequisition to the UP Public Service Commission on the basis ofquantifiable data, existing strength of cadre as well as the actual personsworking in different categories forthwith so that interview be conductedat the earliest and that the entire exercise be completed within fourDmonths.

5. Being aggrieved by the impugned judgment, the appellants whoare the selected candidates and have already joined their respectiveposts have filed these appeals before this Court. Vide order dated03.03.2017, this Court ordered to maintain status-quo as existing on theEsaid date.

6. The batch of appeals were heard at length and the hearingstretched over number of dates. We have heard Mr. P.S. Patwalia,learned Senior counsel, Mr. M. Karpaga Vinayagam learned Seniorcounsel, Mr. Guru Krishna Kumar, learned Senior counsel, Ms.FMahalakshmi Pavani, learned Senior counsel, Ms. Vibha Datta Makhija,learned Senior counsel, Mr. Mehul M. Gupta, learned counsel and Mr.A. Subba Rao, learned counsel appearing on behalf of the appellants.We have heard Mr. S.R. Singh, learned Senior counsel appearing onbehalf of respondent-State. We have also heard Mr. Alok Mishra, learnedcounsel, Mr. K. Parmeshwar, learned counsel, Mr. Anil Nauriya, learnedGcounsel, Ms. Sumita Hazarika, learned counsel and Mr. Dinesh KumarTiwary, learned counsel appearing on behalf of the applicants-respondents.

Contentions of the appellants

7. Mr. P.S. Patwalia, Senior Counsel: Contending that therevised requisition was in accordance with the provisions of UPHReservation Act, 1994, the learned Senior counsel submitted that there

are no allegations of malafide/arbitrariness to vitiate the selection process.It was submitted that based on the complaint received by the StateBackward Class Commission, the Department of Agriculture hasundertaken an exercise and found that there was wrongful calculationof the category-wise vacancy and the earlier requisition was required tobe rectified. Learned Senior counsel submitted that the revised OfficeMemorandum of the UP Public Service Commission dated 12.10.2014is based on the revised requisition of the Department of Agriculturedated 20.08.2014 and only the breakup of vacancies category-wise hasbeen reworked and revised and while so, the High Court erred in sayingthat the rules of the game had been changed in the midst of the selectionprocess vitiating the selection. It was submitted that the eligibility criteriahave not been changed at all and the High Court erred in relying upon K.Manjusree v. State of Andhra Pradesh and another (2008) 3 SCC512and Hemani Malhotra v. High Court of Delhi (2008) 7 SCC11for setting aside the process of selection from the stage of declarationof result of the written examination. Learned Senior counsel furthersubmitted that the private respondents/intervenors having participated inthe interview and having found that they are unsuccessful, have filed thewrit petitions and they are estopped from challenging the OfficeMemorandum dated 12.10.2014 and the selection process.

8. Mr. M. Karpaga Vinayagam, Senior Counsel: LearnedSenior counsel submitted that the revised Office Memorandum of UPPublic Service Commission dated 12.10.2014 was based upon the revisedrequisition sent by the Department of Agriculture dated 20.08.2014 andonly when the private respondents found themselves unsuccessful, theychose to challenge the Office Memorandum dated 12.10.2014. LearnedSenior counsel further submitted that the private respondents have notraised any protest over the change in number of vacancies and theappellants having been selected and presently working, great prejudicewould be caused to them if the entire selection process is set aside.

9. Mr. Guru Krishna Kumar, Senior Counsel: Learned SeniorCounsel submitted that the State has filed detailed counter affidavitexplaining the reason for revised requisition and that the same was doneonly to fulfill the constitutional mandate of reservation and the statutoryprovisions in UP Reservation Act, 1994. The High Court has not consideredthis aspect in proper perspective. Learned Senior counsel furthersubmitted that the private respondents have not shown as to how they

Aare affected by the increase in number of posts for OBCs. It wascontended that non-impleading of successful parties in the writ petitionis fatal and the High Court was wrong in saying that impleading of someof the successful candidates would be enough. Learned Senior counselfurther contended that the rules of the game was not changed and onlythe category-wise vacancies were changed and the Government hasBthe power to rectify the requisite number of vacancies in order to fulfillthe constitutional mandate of reservation and the provisions of UPReservation Act, 1994.

10. Ms. Mahalakshmi Pavani, Senior Counsel: Reiteratingthe above submissions, learned Senior counsel submitted that the eligibilityCcriteria for selection of Technical Assistant – Group has not beenchanged at all; but only the breakup of vacancies category-wise hasbeen reworked and the High Court was not right in setting aside theselection of the appellants. It was submitted that the successful candidateshave been working for more than three years and their selection and

Dappointment are based on merit in different categories and the entireselection cannot be set aside upsetting the entire process.

11. Ms. Vibha Datta Makhija, Senior Counsel: Reiteratingthe above submissions, learned Senior counsel contended that after issuingearlier requisition dated 03.10.2012, department has undertaken anEexercise and found that there was wrongful calculation of category-wise vacancies. It was further contended that complaint was madebefore the Backward Classes Commission and after the complaint, ondirection from the State Government, the Department of Agriculturehas undertaken the exercise and found that there was wrongful calculationof the category-wise vacancy and the earlier requisition was thus requiredFto be rectified. It was submitted that when there is no allegation of malafide/arbitrariness,the entire selection process cannot be set aside.

12. Mr. Mehul M. Gupta and Mr. A. Subba Rao, learnedcounsel have also reiterated the above submissions and inter alia madetheir contentions. Mr. Mehul M. Gupta prayed to exercise the powerGunder Article 142 of the Constitution of India to issue appointment ordersto 906 candidates.

Contentions of the State

13. Mr. S.R. Singh, Senior counsel: Taking us through thedetailed counter affidavit filed by the State, learned Senior counsel hasH

submitted that the High Court was not right in holding that the revisedrequisition as amounting to changing the rules of the game during theprocess of selection. Learned Senior counsel has submitted that mererectification of mistake in the calculation of vacancies category-wisebefore commencement of interview would not amount to changing therules of the game during the process of selection. Learned Senior counselalso made elaborate submissions as to the absorption of diploma holdersagainst the posts meant for “General quota”. It was submitted that tokeep the appointments within the permissible statutory limits, theappointments were issued only to 6599 candidates and 29 candidateswithheld for want of details. It was submitted that 906 candidates werenot given appointments as it would be beyond the permissible statutorylimit of reservation under the UP Reservation Act, 1994.

Contention of the private respondents

14. Mr. Alok Mishra, learned counsel: Learned counselsubmitted that changing the number of vacancies category-wise is inviolation of the statutory provisions and Rule 15(3) of the AgricultureService Rules, 1993 and also the constitutional mandate was infringedand by revising the number of posts in the various categories, substantialnumber of candidates were illegally deprived of the opportunities to appearin the interview. It was contended that Office Memorandum dated12.10.2014 changing the number of vacancies category-wise suffersfrom vice of arbitrariness and the High Court rightly held that the rulesof the game were changed during the process of selection and the HighCourt rightly set aside the selection of the appellants directing holding ofinterview afresh based on the quantifiable date collected and taking intoaccount the cadre strength and the actual working strength. Learnedcounsel further submitted that since the rules were violated and theconstitutional mandate was infringed, as held in Union of India andothers v. O. Chakradhar (2002) 3 SCC 146, individual notices werenot required to be sent to the selected candidates and non-issuance ofnotice to individual selected candidates will not affect the correctness ofthe impugned judgment.

15. Mr. K. Parameshwar, learned counsel: Learned counselsubmitted that challenging the Office Memorandum dated 12.10.2014issued by the UP Public Service Commission and also the selectionprocess and the final selection list, number of writ petitions were filedand the appellants have challenged the judgment in the lead case in WP

DEF

A(C) No.34196 of 2015 and in the other writ petitions viz. WP(C)No.38399/2015, WP(C)No.45822/2015, WP(C) No.47894/2015, WP(C)No.50878/2015 and SPLAD No.283/2016 and the appellants have notchosen to challenge the judgment passed in number of other writ petitionsremaining unchallenged and operate as res judicata. In support of hiscontention, learned counsel placed reliance upon Sri Gangai VinayagarBTemple and Another v. Meenakashi Ammal and Others (2015) 3SCC 624. Insofar as horizontal reservation, the learned counsel furthersubmitted that wherever the candidates for horizontal reservation werenot available, they were filled up with the candidates with the verticalreservation which is not in accordance with law and the consistent viewCtaken by the Supreme Court. The learned counsel submitted thatconsidering number of irregularities in the selection process, the HighCourt rightly set aside the selection process subsequent to the stage ofdeclaration of written examination and the impugned judgment warrantsno interference.

D16. Mr. Anil Nauriya, learned counsel submitted that the termsand conditions for the selection were set out in the advertisement andthe rights of the candidates for selection to be considered in accordancewith the rules as they existed on the date of the advertisement and notby the subsequent events. In support of his contention, the learnedcounsel placed reliance upon N.T. Devin Katti and others v. KarnatakaEPublic Service Commission and others (1990) 3 SCC 157. Thelearned counsel further submitted that by the adjustment of diplomaholders against the “general quota”, the State erred in revising therequisition of the vacancies in different categories which prejudiciallyaffect the interest of the candidates who appeared in the examinationFand passed in the written examination and the High Court rightly setaside the selection process subsequent to the stage of declaration of thewritten examination. Reliance was placed upon Government of Indiathrough Secretary and another v. Ravi Prakash Gupta and another(2010) 7 SCC 626.G17. Mr. Dinesh Kumar Tiwary, learned counsel: Drawing ourattention to Uttar Pradesh State Public Service Commission (Regulationof Procedure and Conduct of Business) Act, 1974, the learned counselsubmitted that the conduct of business by the UP Public ServiceCommission shall be strictly in accordance with the provisions and the

revised Office Memorandum dated 12.10.2014 changing the number ofvacancies in different categories is unsustainable and the High Courtrightly set aside the same and directed the selection process to becontinued and directed the State to send requisition to the UP PublicService Commission on the basis of quantifiable data and cadre strengthas well as actual persons working in different categories. Reliance wasplaced upon K. Manjusree.

18. Upon consideration of the above submissions and the impugnedjudgment and other materials on record, the following points arise fordetermination:-

(i) Whether the revised requisition dated 20.08.2014 and the officememorandum of UP Public Service Commission dated12.10.2014 is only rectification of wrongful calculation ofcategory-wise vacancies?

(ii) Whether the revised Office Memorandum dated 12.10.2014suffers from arbitrariness as contended by the respondents?

(iii) Whether the office memorandum dated 12.10.2014 revisingthe breakup of vacancies would amount to change in the rulesof the game during the process of selection?

(iv) Having had full knowledge of revising the category-wisevacancies and having consciously participated in the interview,whether the unsuccessful candidates-private respondents-intervenors are estopped from challenging the selection of thesuccessful candidates?

(v) When the regularization of diploma holders was not underchallenge in the writ petitions filed in the year 2015, whether theHigh Court was right in going into the legality of the regularizationof the diploma holders and recording an adverse findingregarding the absorption of the diploma holders against theGeneral quota?

(vi) Whether revised requisition of the number of vacanciescategory-wise has caused prejudice to the General/Unreservedcategory candidates as contended by the respondents?

(vii) Whether 906 candidates are entitled to seek for direction forissuance of appointment orders?

ARevised requisition dated 20.08.2014 and Office Memorandumdated 12.10.2014 notifying revised vacancies in differentcategories – in consonance with the provisions of UP ReservationAct, 1994 and UPSubordinate Agriculture Service Rules, 1993(UP Service Rules, 1993)

B19. The posts of Technical Assistant Grade-III are Class-III Postswhich are governed under the Agriculture Service Rules, 1993. Theposts were restructured with effect from 25.10.2007. The pay scale ofthe aforesaid posts was fixed as Rs.3200-4900 and the total number ofsanctioned posts of Technical Assistant Grade-III was 10,531. Afterrestructure of the posts, the details of the vacancies were worked out inCwhich it was found that 10,531 posts were sanctioned out of which 5,860persons were working. On that ground, the total vacancies weredetermined as 4,671; after making deduction of 2% as per GovernmentOrder dated 05.03.2002, the total vacant posts were shown as 4,578 andthe requisition was sent to the UP Public Service Commission onD03.10.2012. Subsequently, the number of posts were increased by 2,092out of which, as per Government Order dated 05.03.2002, 2% had beendeducted and vide requisition dated 30.04.2013, requisition was sentshowing the increased vacant posts as 2,050 out of which total numberof vacancies against the OBC quota was shown as 554. In the earlier

requisition dated 03.10.2012, the total number of vacancies against theEOBC quota were shown as 12. Thus, after sending the second requisition,total number of vacancies against the OBC quota were shown as 554 +12 = 566.

20. The Department of Agriculture to fill up the existing vacanciesof the year 2013 determined the vacancies and sent it to the StateFGovernment. Accordingly, the State Government sent the requisition tothe UP Public Service Commission showing total number of posts as6,628 out of which 3,616 posts were shown against the General quota,2,211 posts shown against the Scheduled Castes, 235 posts reserved forthe Scheduled Tribes and 566 posts were figured out against OtherGBackward Classes and accordingly, UP Public Service Commissionpublished the advertisement dated 22.10.2013.

21. After the publication of the vacancies, complaint was filedbefore the Backward Classes Commission, UP complaining that insteadof showing actual vacancies of the reserved category of Other BackwardHClasses, 566 posts have been shown in the advertisement. On such

complaint, the Department of Agriculture as well as UP Public ServiceCommission were called upon to reply to the aforesaid complaint. Itwas thereafter, the Agriculture Department undertook an exercise andfound that on account of wrongful calculation of the category-wisevacancy, the earlier requisition was required to be rectified. Afterundertaking the exercise as directed by the Authority, it was found thatthe total number of “General category” candidates was wrongly figuredout and shown as 2,622; while in fact 1,749 employees (979 OBC and770 Others) who were absorbed on account of having diploma fromthe Government Agriculture School during the years 1981 to 1987, werealso required to be counted against the “General category”.

22. The Government Agriculture School, Bulandshahar,Government Agriculture School, Chargawan-Garakhpur and GovernmentAgriculture School, Jhansi were run by the Agriculture Department. Theschools were providing certificate of two years in Krishi Prasar Diplomaand the persons undertaking aforesaid diploma during 1981 to 1987 wererequired to be appointed directly without any selection. However, afterenforcement of the Agriculture Service Rules, 1993 since the diplomaholder of 1981 to 1987 could not be appointed, the Directorate has soughtguidelines from the State Government vide its letter dated 22.01.1998.The State Government vide its letter dated 04.06.1998 granted therelaxation and directed the appointment of Agriculture Diploma Holderswho were 1822 in number, out of which 1749 had joined up to 1998.Since at the time of determination of the vacancy, the OBC categorypersons appointed on the basis of the Agriculture Diploma HoldersCertificate were also counted against the vacancy in OBC categorywhile they were not required to be counted against the OBC category,the wrongful calculation had been arrived at. The earlier requisitionsent showing only 566 vacancies against the “OBC quota” while in factit should have been 2030, as all the diploma holders were appointedagainst the “General quota” and they have not been appointed againstthe “OBC quota”. According to the department, subsequent requisitionwas merely rectification of the earlier mistake. On the date ofadvertisement, the actual vacancies of OBC was 2030 but on accountof wrongful calculation by the department, it was advertised as 566.

23. It is thus due to the wrongful calculation of OBC quota, theearlier requisition was sent showing the vacancies against OBC quotaas only 566; while in fact vacant posts against OBC quota should be

A2030. It is in this context, the Department of Agriculture has reworkedthe vacancy against various categories and sent the revised requisitionas under:-

D24. After taking the opinion of the Personnel Department, thefirst respondent vide order dated 20.08.2014 approved the vacanciesfor different categories of persons in accordance with the applicableAgriculture Service Rules and sent the revised requisition as under:-

On the basis of the above government order dated 20.08.2014,the Department of Agriculture vide its letter No. AC/101 dated 20.08.2014sent the above revised requisition to the UP Public Service Commission.According to the State, the category-wise vacancy position was changedGonly after meeting was held of all concerned i.e. representatives of theKarmik Department as well as the representatives of the AdministrativeDepartment and it was found that wrongful calculation of category-wise vacancy had been sent earlier which was likely to result in anomaliesin the total representation of each category in total cadre strength ofTechnical Assistant Grade-III in the Agriculture Department. Hence,Hrevised requisition was sent on 20.08.2014 from the Administrative

Department to the Director, Agriculture who in turn was directed tocommunicate the same to the UP Public Service Commission.

25. The result of the written examination published on 15.09.2014was only based on the above revised requisition. The declaration ofresult of the written examination was issued based on the revisedrequisition of the posts. The UP Public Service Commission acted onthe revised requisition of the Government dated 20.08.2014. Before thecandidates were called for interview, Office Memorandum dated12.10.2014 was issued by the UP Public Service Commission revisingthe number of vacancies for different categories. The UP Public ServiceCommission has thus not travelled beyond the requisition sent by theGovernment.

26. By the revised requisition, the State endeavoured to achievethe object of reservation as per Uttar Pradesh Public Services(Reservation for Scheduled Castes, Scheduled Tribes and OtherBackward Classes) Act, 1994. The original advertisement was for ‘3616’posts against “Unreserved (UR) quota” and only ‘566’ against “OBCquota” which was far less than the requisite percentage for OBC. Asper Section 3(1) of UP Reservation Act, 1994, specific percentage ofvacancies have been reserved for different categories. Section 3 of theUP Reservation Act, 1994 reads as under:-

“3. Reservation in favour of Scheduled Castes, ScheduledTribes and Other Backward Classes:-

(1) In public services and posts, there shall be reservation at thestage of direct recruitment, the following percentage of vacanciesto which recruitments are to be made in accordance with theroster referred to in sub-section (5), in favour of the persons,belonging to Scheduled Castes, Scheduled Tribes and OtherBackward Classes of citizens:-

a. In the case of Scheduled Castes – twenty-one per cent;

b. In the case of Scheduled Tribes – two per cent;

c. In the case of Other Backward Classes of citizens –twenty-seven per cent

Provided that reservation under clause (c) shall not apply to thecategory of Other Backward Classes of the citizens specified inScheduled-II.

Provided further that the reservation of vacancies for all categoriesof persons shall not exceed in any year of recruitment fifty percent of the total vacancies of that year as also fifty per cent of thecadre strength of the service to which the recruitment of to bemade.

(2) If in respect of any year of recruitment any vacancy reservedfor any category of persons under sub-section (1) remains unfilled,such vacancy shall be carried forward and be filled through specialrecruitment in that very year or in succeeding year or years ofrecruitment as separate class of vacancy and such class ofvacancy shall not be considered together with the vacancies ofthe year of recruitment in which it is filled and also for the purposeof determining the ceiling of fifty per cent reservation of the totalvacancies of the year notwithstanding anything to the contrarycontained in sub-section (1).

27. Section 4 of the UP Reservation Act, 1994 imposes responsibilityand powers upon the competent authority for compliance of the Act.Section 4 reads as under:-

“4. Responsibility and powers for compliance of the Act.-E(1) The State Government may by notified order, entrust the ap-pointing authority or any officer or employee with the responsibil-ity of ensuring the compliance of the provisions of this Act.

(2) The State Government may in the like manner, invest the ap-pointing authority or officer or employee referred to in sub-sec-Ftion (1) with such powers or authority as may be necessary foreffectively discharging the responsibility entrusted to him undersub-section (1).

28. Section 5 of the UP Reservation Act, 1994 is the penalprovisions. Section 5 provides that “Any appointing authority or officer

Gor employee entrusted with the responsibility under Section 4(1)who wilfully acts in manner intended to contravene or defeat thepurposes of the Act, shall, on conviction, be punishable withimprisonment which may extend to three months or with fine…..”.As per Section 2(a) of the UP Reservation Act, 1994, “appointingauthority” in relation to public services and posts means the authorityHempowered to make appointment to such services or posts.

29. As pointed out earlier, the post of Technical Assistant Grade-III is governed under the Agriculture Services Rules, 1993. As per Rule15 of Agriculture Service Rules, 1993, the recruitment authority woulddetermine the number of vacancies to be filled during the year forScheduled Castes, Scheduled Tribes and other Backward Classcandidates under Rule 6. Rule 15 reads as under:-

15. Determination of vacancies

The Recruitment Authority would determine the number ofvacancies to be filled during the year and would also determinethe number of vacancies for Scheduled Castes, Scheduled Tribesand other categories candidates under Rule 6. The vacancies fordirect recruitment, would be informed to the Commission accordingto the prevalent rules and orders at that time or would be notifiedto the Employment Office.

Rule 6 of the Agriculture Service Rules, 1993 stipulates that“reservation for Scheduled Castes, Scheduled Tribes and otherBackward Class candidates would be done according to the ordersof the Government prevalent at the time of the appointment.”Agriculture Service Rules, 1993 thus clearly stipulate that it is for theRecruitment Authority to determine the number of vacancies to be filledduring the year and would also determine the number of vacancies forScheduled Castes, Scheduled Tribes and other category candidates underRule 6. On noticing that there was wrongful calculation of the category-wise vacancy, the Recruitment Authority is empowered to rectify thewrongful calculation and make revised requisition which is in accordancewith the provisions of UP Reservation Act, 1994 and Agriculture ServiceRules, 1993.30. Reiterating the well-settled principle that the percentage ofreservation has to be worked out in relation to number of posts whichform cadre strength, in R.K. Sabharwal and others v. State of Punjaband others (1995) 2 SCC 745, the Supreme Court held as under:-

“6. The expressions ‘posts’ and ‘vacancies’, often used in theexecutive instructions providing for reservations, are ratherproblematical. The word ‘post’ means an appointment, job, officeor employment. position to which person is appointed.‘Vacancy’ means an unoccupied post or office. The plain meaningof the two expressions make it clear that there must be ‘post’ in

1100SUPREME COURT REPORTS

Aexistence to enable the ‘vacancy’ to occur. The cadre-strength isalways measured by the number of posts comprising the cadre.Right to be considered for appointment can only be claimed inrespect of post in cadre. As consequence the percentage ofreservation has to be worked out in relation to the number ofposts which form the cadre-strength. The concept of ‘vacancy’Bhas no relevance in operating the percentage of reservation.”

31. It emerges from the materials on record that the total numberof sanctioned posts is 10,559 and the quota of 21% Scheduled Caste hascome to 2,217 but of which 297 persons are working which come to2.81% in the Scheduled Caste quota. The rest of vacant posts 1,920 areCabout 18.18% and after deduction of 2% as per the Government Order,the revised requisition for 1,882 posts against the Scheduled Caste quotahas come to 18.18% which was sent. Likewise, against 2% ScheduledTribe, total posts carved out were 211 posts out of 10,559 posts and theworking strength of the employees is 6 which comes to 0.05%. Out of

Dthe rest of the 205 posts which comes to 1.94%, after deduction of 2%as per government order, 201 posts of Scheduled Castes were sent inthe revised requisition. So far as 27% posts of Other Backward Classes,the total number of posts are 2,851 out of 10,599 and the workingemployees of OBC is 780 which come to 7.38% and the rest of the2,071 posts come to 19.61%. In the same way, 2,713 employees areEworking against the General quota which comes to 25.69% and rest ofthe posts required to complete 50% quota is 2,567 i.e. 24.31%. This canbe well clarified by the following chart:-

From the above tabular column, it is seen that the revised requisitionis to ensure compliance of the reservation in terms of Section 3 of theUP Reservation Act, 1994. This aspect has not been properly appreciatedby the High Court.

32. Revising the number of vacancies in OBC category as 2030does not violate the right of the General category candidates becausethe State Legislature has enacted the Reservation Act No.4 of 1994providing for reservation, keeping in mind the parameters of Article 16(4)of the Constitution of India. By revising requisition, the State hasendeavoured to achieve the object of the reservation by working out thevacancy for selection of the posts in question without causing anyprejudice to the General category candidates. The revised requisition somade was within the purview of the competency of the State in order toachieve the object of the UP Reservation Act, 1994. Moreover, as rightlycontended by the appellants, the total number of vacancies have notbeen changed or modified.

33. The appropriate authority has taken the cadre strength of theTechnical Assistant Grade-III as unit in the operation of the roster inthe year to ascertain whether the given class or group is adequatelyrepresented in service. The revised requisition of the Department ofAgriculture dated 20.08.2014 was well within the purview of thecompetence. Moreover, the total number of vacancies i.e. 6628 havenot been changed or modified.

34. As pointed out earlier, the category-wise vacancy positionwas changed after meeting of all concerned was held i.e. representativesof the Karmik Department as well as of representatives of theAdministrative Department and it was found that wrong calculation ofcategory-wise vacancy had been sent earlier. If the original requisitiondated 22.10.2013 was to be retained, it would have resulted in anomaliesof the category-wise posts thereby contravening the provisions of theUP Reservation Act, 1994. Hence, the revised requisition was sent on20.08.2014 from the Administrative Department to the Director,Agriculture who in turn communicated the same to the UP Public ServiceCommission. By the revised requisition of vacancies for variouscategories, there is no violation of any rules; on the other hand, it is onlyto rectify the calculation of vacancies in different categories and tocomply with the requisite quota of reservation in different categories asper UP Reservation Act, 1994. This aspect was not properly appreciatedby the High Court.

1102SUPREME COURT REPORTS

A35. In para (68) of the impugned judgment, though the High Courtheld that the Government has to apply the cadre strength as unit in theoperation of the roster in order to ascertain whether given group orcategory is adequately represented. The revised requisition dated20.08.2014 and the Office Memorandum dated 12.10.2014 of the UPPublic Service Commission was only to ensure the compliance of theBprovisions of the UP Reservation Act, 1994 and to ensure that thecategory-wise reservation is not violated which was not kept in view bythe High Court.

Absorption of the Diploma Holders

C36. In para (64) of the judgment, the High Court observed that theentire maneuvering has taken place in the garb of diploma holderswherein, 1749 diploma holders in the department were adjusted/regularized in the year 1998 and there was no occasion for putting all thediploma holders against open category and under the garb of adjustmentof vacancies, the entire scenario has been changed and thus, the entireDvacancies against General category have been usurped. The High Courtheld that the diploma holders ought not to have been absorbed againstthe General category so as to alter the advertised number of posts underthe General category.

37. As pointed out earlier, the earlier requisition was sent showingEonly 566 vacancies against the OBC quota, while in fact, it should havebeen 2030, as all the diploma holders were appointed against the Generalquota and they have not been appointed against the OBC quota. In thiscontext, we may usefully refer to the affidavit filed by the Deputy Director,Agriculture (Training) before the High Court on 17.03.2015 which readsas under:-F

“…..the Government Agriculture School-Bulandshahar,Government Agriculture School-Chargawan-Gorakhpur andGovernment Agriculture School-Jhansi were running by theAgriculture Department. The schools were providing certificateGof two years in Krishi Prasar Diploma and the persons undertakingaforesaid diploma during 1981 to 1987 were required to beappointed directly without any selection. However, afterenforcement of the Service Rules 1993 since the diploma holderof 1981 to 1987 could not be appointed, the Directorate has soughtguidelines from the State Government vide its letter dated 22/1/1998. The State Government vide its letter dated 4/6/1998 grantedthe relaxation and directed for appointment of Agriculture DiplomaHolders who were 1822 in number, out of which 1749 were joinedupto 1998. Since at the time of determination of the vacancy, theOBC person appointed on the basis of the Agriculture Diplomaholders certificate were also counted against the vacancy in OBCcategory while they were not required to be counted against theOBC category, the wrongful calculation had been arrived. Theearlier requisition was sent and showing only 566 vacancies againstthe OBC quota while in fact it should be 2030, as all the diplomaholders were appointed against the general quota and they havenot been appointed against the OBC quota. Subsequent requisitionwas merely rectification of the earlier mistake. On the date ofadvertisement, the actual post of OBC was lying vacant 2030posts but on account of wrongful calculation it was advertised as566…..”.

38. At the time of absorption of the diploma holders in the year1998, there was no provision for reservation for Backward Class categoryin the concerned department; only by U.P. Reservation (Amendment)Act, 2002, the reservation was extended to the concerned departmentand therefore, the appointees/diploma holders have to be consideredonly against the “general quota” candidates. As seen from the aboveaffidavit filed by the Deputy Director, Agriculture (Training), the diplomaholders were not required to be counted against OBC quota; by wrongfulcalculation, they have been adjusted against the OBC quota which is notpermissible in law as reservation cannot be granted retrospectively. Bythe revised requisition, the Government sought to rectify this mistakewhich resulted in alteration in number of vacancies available againstcertain categories. Such rectification of mistake by Government cannotbe faulted nor can this be ground for recalling the advertisement inquestion and issuing fresh one. The High Court, in our view, shouldhave adopted pragmatic approach of the matter in hand and consideredthe fact that the variation in number of vacancies against “General quota”was only because of the absorption of the diploma holders against the“General quota” and rectifying the mistake of adjustment against “OBCvacancies”.

AOffice Memorandum dated 12.10.2014 revising the vacanciescategory-wise – whether amounts to changing the rules of thegame after the commencement of the selection

39. The High Court held that after the advertisement dated22.10.2013, changing the break-up of vacancies would amount to changeBof the rules of the game after the commencement of the selection processwhich is not permissible. The High Court placed reliance upon MadanMohan Sharma and another v. State of Rajasthan and others(2008)3 SCC 724. The learned counsel for the private respondents submittedthat changing the vacancies in different categories is illegal and the sameamounts to changing the rules of the game in the middle of the selectionCprocess. In support of their contention, the learned counsel appearingfor the respondents placed reliance upon Hemani Malhotra and K.Manjusree.40. In K. Manjusree, the selection to ten posts of District andSessions Judge (Grade-II) in the Andhra Pradesh Higher Judicial ServiceDin pursuance of the advertisement dated 28.05.2004, was the subjectmatter of the appeal. The selection was on the basis of writtenexamination followed by an interview. There were no minimum cut-offmarks prescribed for clearing the interview. After the selection processwas completed and the select list was prepared by the interview committeeEwhich was approved by the Administrative Committee, when the matterwas placed before the Full Court, the Full Court authorized the ChiefJustice to constitute committee of judges for preparing the list ofcandidates to be recommended for appointment of District and SessionsJudge (Grade-II). Accordingly, the Chief Justice appointed sub-committee of two judges which prepared fresh list of candidates forFappointment prescribing minimum qualifying marks for the interview.The sub-committee was of the view that apart from applying the minimummarks for the written examination, the cut-off marks/percentage shouldbe applied for interview marks also and those who failed to secure suchminimum marks in the interview, should be considered as having failed.GThe sub-committee thus prepared fresh merit list. In those facts andcircumstances of the case, the Supreme Court set aside the select list byholding that the introduction of the requirement of cut-off marks for theinterview after the entire selection process was completed amounted tochanging the rules of the game after the selection process was almostcomplete which is impermissible.H

41. In Hemani Malhotra, the result of the written examination ofthe Delhi Higher Judicial Service was not announced by the High Courtof Delhi, and individual communication was sent to the petitioners therein,informing them of their selection for the interview. Five candidates werecalled for interview on various dates and were informed of itspostponement i.e. the interview first scheduled for 20-09-2006 was laterdeferred to 29-11-2006, 07-12-2006, 23-01-2007, 05-02-2007 and wasfinally conducted on 27-02-2007. Meanwhile on 13-12-2006, by FullCourt Resolution, minimum qualifying marks for the viva voce wasprescribed (55% for general candidates and 50% for SC and STcandidates). In such facts and circumstances, prescribing minimum marksfor the interview was struck down as changing the rules of the gameduring selection process. Initially, there was prescription of minimummarks for written test only and not for viva voce. The minimum marksfor viva voce were prescribed after written test was over and it washeld that this was not permissible.

42. The case in hand is distinguishable from those cases wherethe mode of selection was altered by fixing the cut-off marks after theselection process had completed/commenced; whereas in the presentcase only wrongful calculation in the number of vacancies in differentcategories had been corrected in order to satisfy the percentage ofreservation against various categories as per the provisions of UPReservation Act, 1994. Such correction cannot be said to changing therules or basis of selection. The eligibility criteria was not changed.

43. It is also pertinent to note that the proposition of law that rulesof game cannot be changed after the selection has been commenceditself has been referred for reconsideration by larger Bench in TejPrakash Pathak and others v. Rajasthan High Court and others(2013) 4 SCC 540. While referring the matter to larger Bench, inTej Prakash, the Supreme Court explained the ambit of the expressionchanging the rules of the game as under:-

“11. Those various cases deal with situations where the Statesought to alter (1) the eligibility criteria of the candidates seekingemployment, or (2) the method and manner of making the selectionof the suitable candidates. The latter could be termed as theprocedure adopted for the selection, such as, prescribing minimumcut-off marks to be secured by the candidates either in the writtenexamination or viva voce as was done in K. Manjusree v. State

of A.P. (2008) 3 SCC 512 or the present case or calling upon thecandidates to undergo some test relevant to the nature of theemployment (such as driving test as was in Maharashtra SRTCv. Rajendra Bhimrao Mandve (2001) 10 SCC 51).

15. No doubt it is salutary principle not to permit the State or itsBinstrumentalities to tinker with the “rules of the game” insofar asthe prescription of eligibility criteria is concerned as was done inC. Channabasavaih v. State of Mysore AIR 1965 SC 1293, etc.in order to avoid manipulation of the recruitment process and itsresults. Whether such principle should be applied in the contextof the “rules of the game” stipulating the procedure for selectionCmore particularly when the change sought is to impose morerigorous scrutiny for selection requires an authoritativepronouncement of larger Bench of this Court. We, therefore,order that the matter be placed before the Hon’ble Chief Justiceof India for appropriate orders in this regard.”

44. As discussed earlier, the case in hand is clearly distinguishablefrom K. Manjusree (supra) and Hemani Malhotra (supra). Thediploma holders were wrongly counted against the vacancies in OBCcategory; while they could not have been counted against OBC categoryand while doing so, wrongful calculation had been arrived and theEsame has to be corrected by counting the diploma holders against thegeneral category.

45. It is to be pointed out that instruction No.7 in the advertisementdated 22.10.2013 stipulates that the number of vacancies may increaseor decrease. Agriculture Service Rules, 1993 clearly stipulate that it isFthe prerogative of the government to determine the number of vacanciesin accordance with the rules. As per Rule 15 of the Agriculture ServiceRules, 1993, “the recruitment authority would determine the numberof vacancies for Scheduled Castes, Scheduled Tribes and othercategory candidates under Rule 6.” Rule 6 stipulates that “reservationfor Scheduled Castes, Scheduled Tribes and other Backward ClassGcandidates would be done according to the orders of the governmentprevalent at the time of appointment.”

46. Rule 15(3) of the Agriculture Service Rules, 1993 providesfor calling the successful candidates, keeping in mind the vacancy of thereserved categories required under Rule 6 after the declaration of result

of written examination and for the adequate representation of eachcategory, three times of candidates qua vacancies are required to beinvited for the interview. Thus, on the total advertised number of seatsfor open category i.e. 3616 x 3 = 10848 candidates were eligible underRule 15(3) of the Agriculture Service Rules, 1993 to be called forinterview.

47. In the impugned judgment, the High Court has observed thatby decreasing the number of seats of General category, number ofcandidates of General category were illegally deprived from appearingin the interview. The High Court has also observed that by increasingthe number of seats of OBC category, more candidates have been calledfor interview, even though they were not eligible as per advertisementdated 22.10.2013 and thus, changing the number of vacancies for eachcategory, has prejudiced the number of candidates who are to be calledfor interview. The relevant findings of the High Court is as under:-

“……Thus, on the total advertised number of seats for opencategory i.e. 3616 x 3 = 10848 candidates were eligible underRule 15(3) for interview test. However, by decreasing the numberof seats vide letter dated 20.08.2014 i.e. 2515 x 3 = 7545 candidateswere invited, thus, 10848 – 7545 = 3303 candidates were illegallydeprived to appear in the interview test. However, in the OtherBackward Class category, only 566 vacancies were advertisedagainst which only 1698 candidates would be eligible to appear inthe interview. However, by illegally increasing the number ofvacancies to 2030, 6090 candidates had been invited for theinterview. Thus, in the Other Backward Class category, 6090 –1698 = 4392 more candidates were called for the interview, eventhough they were not eligible as per advertisement dated22.10.2013. Thus, by changing the number of vacancies fordifferent categories amounts to violation of Rule 15(3) of Rules,1993 during the pendency of the advertisement and thus, deprivingof 3303 general category candidates, even to appear in theinterview and allowing 4392 more candidates of OBC in the zoneof consideration for the selection, amounts to changing the rule ofthe game during the process of selection……”.

48. By careful consideration, we are unable to countenance theabove view taken by the High Court that the change in number ofvacancies has illegally deprived 3303 candidates in General category

DEF

Afrom appearing in the interview and had benefitted the OBC categorycandidates. Be it noted that the writ petitions were filed by the candidateswho appeared for interview and were unsuccessful. It is not known thatwhat were the marks secured by the writ petitioners/candidates in thewritten examination and what were their position in the merit list. Thewrit petitioners who are unsuccessful candidates have not demonstratedBas to how they were prejudicially affected by the change in number ofvacancies against “General category” and “OBC category”. The HighCourt was not right in making generalised observation that decrease inthe number of vacancies against “General category” has illegally deprived3303 candidates from appearing in the interview.

49. Notification by the UP Public Service Commission dated12.10.2014 is based upon the revised requisition of the vacancies by theorder of the Administrative Department dated 20.08.2014. In our view,this would not amount to changing the rules of the game after the selectionprocess had commenced nor it had affected the selection process by

Dchanging the eligibility criteria.

50. Having participated in the interview, the privaterespondents cannot challenge the Office Memorandum dated12.10.2014 and the selection. On behalf of the appellants, it wascontended that after the revised notification dated 12.10.2014, the privateErespondents participated in the interview without protest and only afterthe result was announced and finding that they were not selected, theprivate respondents chose to challenge the revised notification dated12.10.2014 and the private respondents are estopped from challengingthe selection process. It is settled law that person having consciouslyparticipated in the interview cannot turn around and challenge theFselection process.

51. Observing that the result of the interview cannot be challengedby candidate who has participated in the interview and has taken thechance to get selected at the said interview and ultimately, finds himselfto be unsuccessful, in Madan Lal and Others v. State of J&K andGOthers (1995) 3 SCC 486, it was held as under:-

“9. ….. The petitioners also appeared at the oral interviewconducted by the Members concerned of the Commission whointerviewed the petitioners as well as the contesting respondentsconcerned. Thus the petitioners took chance to get themselves

selected at the said oral interview. Only because they did not findthemselves to have emerged successful as result of theircombined performance both at written test and oral interview,they have filed this petition. It is now well settled that if candidatetakes calculated chance and appears at the interview, then, onlybecause the result of the interview is not palatable to him, hecannot turn round and subsequently contend that the process ofinterview was unfair or the Selection Committee was not properlyconstituted. …..”

52. In K.H. Siraj v. High Court of Kerala and Others (2006) 6SCC 395, it was held as under:-

“73. The appellant-petitioners having participated in the interviewin this background, it is not open to the appellant-petitioners toturn round thereafter when they failed at the interview and contendthat the provision of minimum mark for the interview was notproper……..”.

53. In Union of India and Others v. S. Vinodh Kumar andOthers (2007) 8 SCC 100, it was held as under:-

“19. In Chandra Prakash Tiwari v. Shakuntala Shukla(2002)6 SCC 127, it was further observed:-

“34. There is thus no doubt that while question of any estoppel byconduct would not arise in the contextual facts but the law seemto be well settled that in the event candidate appears at theinterview and participates therein, only because the result of theinterview is not ‘palatable’ to him, he cannot turn round andsubsequently contend that the process of interview was unfair orthere was some lacuna in the process.”

Same principle was reiterated in Sadananda Halo and Othersv. Momtaz Ali Sheikh and Others (2008) 4 SCC 619 wherein, it washeld as under:-

“59. It is also settled position that the unsuccessful candidatescannot turn back and assail the selection process. There are ofcourse the exceptions carved out by this Court to this generalrule. This position was reiterated by this Court in its latest judgmentin Union of India v. S. Vinodh Kumar (2007) 8 SCC 100 ……TheCourt also referred to the judgment in Om Prakash Shukla v.

AAkhilesh Kumar Shukla 1986 Supp SCC 285, where it has beenheld specifically that when candidate appears in the examinationwithout protest and subsequently is found to be not successful inthe examination, the question of entertaining the petition challengingsuch examination would not arise……..”

B54. Before the declaration of the result of the written examinationon 15.09.2014, the State Government by its Government order dated20.08.2014 revised the requisition thereby revising the number ofvacancies in different categories. UP Public Service Commission issuedOffice Memorandum dated 12.10.2014 specifically mentioning thenumber of vacancies to be filled up in various categories in accordanceCwith the requisition sent by the State Government. The said OfficeMemorandum dated 12.10.2014 published by UP Public ServiceCommission reads as under:-

“UPPSC

INTERVIEW PROGRAMME

DMonth October/November/December, 2014 (24)

OFFICE MEMORA�DUM

It is thus clear that the candidates who appeared in the interviewwere well aware about the modification/revision in number of vacanciesof Technical Assistants in different categories. The private respondents/intervening applicants have appeared in the interview with their eyeswide open regarding the modified vacancies to be filled up in various

categories of the posts. Having appeared in the interview without anydemur or protest, it is not open to the candidates to challenge the selectionprocess on the ground that there was modification in the number ofvacancies in different categories and they are estopped by the principleof estoppel from challenging the same.

55. The private respondents knew that by the revised notificationdated 12.10.2014, the number of vacancies of different categories havebeen changed and knowing the same, they participated in the interviewand have taken chance and opportunity thereon without any protest.Having participated in the interview and having failed in the final selection,it is not open to the private respondents to turn around and challenge therevised notification dated 12.10.2014 and the revised requisition of thenumber of vacancies in different categories. Having regard to theconsistent view taken by the Supreme Court, the High Court should nothave granted any relief to the private respondents/intervenors.

Unfilled vacancies of Horizontal Reservation filled by candidatesof vertical reservation

56. Contention of the private respondents is that as per the statutoryrequirement, the horizontal reserved vacancies were unfilled and thoseunfilled vacancies of horizontal category were filled by vertical reservationcandidates/other category candidates, which is in violation of the statutoryprovisions vitiating the selection process. On behalf of the UP PublicService Commission, Mr. Shrish Kumar Misra, learned counsel hasfurnished the details as to the number of vacancies reserved for horizontalcategory and the number of candidates found suitable and placed in therespective categories. The said details are as under:-

AOn behalf of UP Public Service Commission, it was submittedthat one of the policies of the State Government regarding horizontalreservation is that, if the suitable candidates for filling the vacanciesreserved for such posts of horizontal reservation are not available andthe same are not carried forward; they are filled up by other suitablecandidates from amongst the candidates belonging to vertically reservedBcategories according to their merit. It was submitted that unfilled horizontalreservation vacancies were thus filled up by suitable candidates ofrespective vertical categories according to their merit which is as perthe policy of the government. The High Court was not right in findingfault with the filling up of vacancies reserved for horizontal reservationCwith other candidates of respective vertical reservation.Plea of res judicata

57. The respondents have sought to invoke the principles of resjudicata by contending that the common judgment dated 10.02.2017passed by the High Court involved eighty-eight petitions which wereDallowed with the direction specified in para (75) of the impugnedjudgment. Out of twenty-one appeals filed before this Court, the judgmentof the High Court passed in six writ petitions only viz. WP(C) No.38399/2015, WP(C) No.45822/2015, WP(C) No.47894/2015, WP(C) No.50878/2015 and SPLAD No.283/2016 has been challenged; other matters haveEnot been challenged either by the State or by the appellants. Mr. K.Parameshwar, learned counsel has contended that when the appellantshave not challenged the common judgment rendered in all the eighty-eight writ petitions and in the present appeals, only the judgment renderedin Writ-C No.34196 of 2015 and few other writ petitions are challenged,the judgment rendered in other writ petitions having not been challenged,Fhave attained finality and thus, operate as res judicata. In support of hiscontention, the learned counsel has placed reliance upon Sri GangaiVinayagar Temple wherein, the Supreme Court held that when thecommon judgment was passed in two or more suits and the judgmentand decree passed in two or more of the suits have not been challenged,Gthe decree not assailed there upon, meta morphoses into the characterof “former suit” and the same operates as res judicata. It wastherefore, contended that in the instant proceedings, the principle of resjudicata would arise since the appellants have not chosen to challengethe common judgment rendered in number of other writ petitions.

58. The above contention does not merit acceptance. In Sri GangaiVinayagar Temple, three separate decrees were passed in OS No.5 of1978 (a suit for injunction simpliciter); OS No.6 of 1978 (monetary partof the suit claim); and OS No.7 of 1978 (monetary part of the suit claimand also the issue of ownership). The tenants thereon challenged onlythe decree passed in respect of OS No.6 of 1978; but have not challengedthe decree passed in OS No.5 of 1978 and OS No.7 of 1978. It was inthat context, the Supreme Court held that non-challenge to two of thedecrees would amount to res judicata. In Sri Gangai Vinayagar Temple,considering the facts and circumstances of the case and non-challengeto the decree passed in OS No.6 of 1978 and OS No.7 of 1978, theSupreme Court took the view that having failed to file appeal against thedecree in OS No.5 of 1978 and OS No.7 of 1978, the cause of thetenants-respondents thereon was permanently sealed and foreclosedsince res judicata applied against them.

59.It is pertinent to note that in Sri Gangai Vinayagar Temple,observing that mere filing of single appeal leads to the entire disputebecoming sub judice once again, the Supreme Court in para (27) heldas under:-

“27. Procedural norms, technicalities and processual law evolveafter years of empirical experience, and to ignore them or givethem short shrift inevitably defeats justice. Where commonjudgment has been delivered in cases in which consolidation ordershave specifically been passed, we think it irresistible that the filingof single appeal leads to the entire dispute becoming sub judiceonce again. ….” [underlining added]

60.In the present case, before the High Court, the contentionsraised were the same and common arguments were advanced. TheHigh Court dealt with the batch of writ petitions and disposed all of themby common judgment. Since it is common judgment with commonreasonings, the present batch of appeals before us would not result inany inconsistent decree or order as all of them arise out of the commonjudgment containing common operative portion of the judgment.

61. Considering the above contention in the light of the consistentjudicial pronouncements of this Court, the above submission is liable tobe rejected. In M/s Shenoy and Co., Represented by its partner BeleSrinivasa Rao Street, Bangalore and Others v. Commercial Tax

AOfficer, Circle II, Bangalore and Others (1985) 2 SCC 512, numberof writ petitions were allowed by the High Court. However, the Statechose to file appeal only in one case which came to be allowed by theSupreme Court in the said case. In that fact situation, this Court took theview that the decision of this Court was binding on all the writ petitionersbefore the High Court even though they were not the respondents in theBappeal before the Supreme Court. In M/s Shenoy and Co., it was heldas under:-

“22. Though large number of writ petitions were filed challengingthe Act, all those writ petitions were grouped together, heardtogether and were disposed of by the High Court by commonjudgment. No petitioner advanced any contention peculiar orindividual to his petition, not common to others. To be precise, thedispute in the cause or controversy between the State and eachpetitioner had no personal or individual element in it or anythingpersonal or peculiar to each petitioner. The challenge to theconstitutional validity of 1979 Act proceeded on identical groundscommon to all petitioners. This challenge was accepted by theHigh Court by common judgment and it was this commonjudgment that was the subject-matter of appeal before this Courtin State of Karnataka v. Hansa Corporation case (1980) 4SCC 697. When the Supreme Court repelled the challenge andheld the Act constitutionally valid, it in terms disposed of not theappeal in Hansa Corporation case alone, but petitions in whichthe High Court issued mandamus on the non-existent ground thatthe 1979 Act was constitutionally invalid. It is, therefore, idle tocontend that the law laid down by this Court in that judgmentwould bind only the Hansa Corporation and not the other petitionersagainst whom the State of Karnataka had not filed any appeal.Todo so is to ignore the binding nature of judgment of this CourtunderArticle 141 of the Constitution.

26. …… The judgment of this Court in Hansa Corporation caseis binding on all concerned whether they were parties to thejudgment or not. We would like to make it clear that there is noinconsistency in the finding of this Court in Joginder Singh caseAIR 1963 SC 913 and Makhanlal Waza case (1971) 1 SCC749. The ratio is the same and the appellants cannot take

advantage of certain observations made by this Court in JoginderSingh case for the reasons indicated above.”

62. Reiterating the above principle, in Director of Settlements,A.P. and Others v. M.R. Apparao and Another (2002) 4 SCC 638, itwas held as under:-

“7. So far as the first question is concerned, Article 141 of theConstitution unequivocally indicates that the law declared by theSupreme Court shall be binding on all courts within the territory ofIndia. The aforesaid Article empowers the Supreme Court todeclare the law. It is, therefore, an essential function of the Courtto interpret legislation. The statements of the Court on mattersother than law like facts may have no binding force as the factsof two cases may not be similar. But what is binding is the ratio ofthe decision and not any finding of facts. It is the principle foundout upon reading of judgment as whole, in the light of thequestions before the Court that forms the ratio and not anyparticular word or sentence….. judgment of the Court has to beread in the context of questions which arose for consideration inthe case in which the judgment was delivered…… The law whichwill be binding underArticle 141 would, therefore, extend to allobservations of points raised and decided by the Court in givencase……”.[underlining added]After referring to the above judgments, the same principle wasreiterated in Fida Hussain and others v. Moradabad DevelopmentAuthority and Another(2011) 12 SCC 615.

63. Before the High Court in several writ petitions, unsuccessfulcandidates challenged the revised notification dated 12.10.2014 and alsothe result dated 21.05.2015 published on 22.05.2015. In all the writpetitions, some contentions were raised and the writ petitions weredisposed of by the common judgment. Thus, the contentious issues raisedby the parties stood determined on the same set of facts and on thesame reasonings. There is no merit in the contention that the judgmentpassed by this Court would bind only the parties in Writ-C No.34196 of2015 and that the other judgments passed by the High Court would standand operate as res judicata. As held in M/s Shenoy and Co. and otherjudgments, to do so is to ignore the binding nature of judgment of thisCourt under Article 141 of the Constitution of India.

1116SUPREME COURT REPORTS

ANon-impleading of successful candidates in the writ petition

64. On behalf of the appellants, repeated arguments were advancedthat the non-impleadment of successful parties will affect the right ofthe selected candidates who have been selected and given appointments.In this regard, the High Court relied upon Union of India and Others v.O. Chakradhar(2002) 3 SCC 146 to hold that it is not necessary toimplead all the successful candidates in the writ petition and therefore,non-impleadment of the successful candidates would not affect themaintainability of the writ petition. The learned Senior counsel appearingfor the appellants submitted that in O. Chakradhar, the entire selectionwas vitiated due to misconduct of the selection and in the present case,there is no such misconduct, fraud or any such other factor which wouldvitiate the entire selection. It was submitted that the High Court itselfhas upheld the result of the written examination while finding fault withthe further selection only because of the change in the number ofvacancies advertised for each category.

65. When the selection of successful candidates is challenged,depending upon the facts and circumstances of the case, the successfulcandidates ought to be put on notice about the filing of writ petition byimpleading them by issuance of notice in accordance with law videPoonam v. State of Uttar Pradesh and others(2016) 2 SCC 779. InEthe present case, we are not inclined to go into this question in view ofthe order passed by the High Court dated 04.06.2015. In WP-C No.34196/2015, the High Court asked the writ petitioners/private respondents lawyerto implead the incumbents as parties who have been selected for thepost in question. Before the High Court, Mr. Ajay Kumar, learned counselrepresenting the UP Public Service Commission submitted that he wouldFsupply at least names of ten successful candidates along with the detailsand by the order of the court, the counsel appearing for the writ petitionerswere directed to serve notice upon those ten candidates. In such factsand circumstances, we are not inclined to go into this question as toimpleading/non-impleading of all the successful candidates in the writGpetition.

66. Re: Contention – Appointment letters not issued to 906candidates and plea to exercise power under Article 142 of theConstitution of India: After the interview was completed, the UPPublic Service Commission has selected 6599 candidates and the

category-wise details of the candidates so recommended by theCommission are as under:-

67. The UP Public Service Commission has withheld the result of29 candidates. The recommendation so made by the UP Public ServiceCommission was in excess of the permissible percentage of reservationas per UP Reservation Act, 1994. In fact, this was one of the groundsof challenge in the writ petition to assail the select list. In the counterfiled by the Principal Secretary, Personnel, Government of UP, it is statedthat change in the category-wise vacancies was further scrutinised interms of Uttar Pradesh Public Services (Reservation for ScheduledCastes, Scheduled Tribes and Other Backward Classes) Act, 1994. Itwas found that harmonious construction of its various sections wasneeded to be taken. In the counter affidavit filed by the PrincipalSecretary, Personnel, it is stated that the total of 6628 vacancies wasexceeding the demarcated percentage and the relevant portion of thesaid affidavit reads as under:-

“Hence, further revision in category-wise vacancy position wasmade and subject to the orders of the Hon’ble High Court, thetotal 6628 vacancies have been sub-divided based on thereservation percentage as the result which was declared byUPPSC was exceeding the demarcated percentage in the followingmanner:

AThereafter, the application of horizontal reservation for dependentsof Freedom Fighters, Ex-Servicemen, Disabled persons and Women wasproposed as follows:

68. Writ Petition No.62112/2015 was filed by few of the successfulcandidates for issuance of appointment letter and the High Court videCits order dated 15.12.2015 directed the official respondents to issueappointment order. The High Court further clarified that any suchappointment made as well as the select list shall abide by any orderwhich may be passed by the Division Bench. Pursuant to the aforesaidorder, the Chief Secretary, Government of UP vide its letter No.1161/D12-4-15-1729/2012 dated 22.12.2015 gave directions to the Departmentthat appointment orders be issued to the selected candidates and thatthe appointment should abide by the final decision of the court.Accordingly, the appointment orders were issued to the selectedcandidates on 30.01.2016 as under:-

The appointments were made subject to the outcome of the writpetition. Thus, total of 5669 candidates were issued appointment orders;the appointment orders were withheld for 24 candidates as the documentswere withheld by UP Public Service Commission.

69. Mr. Mehul M. Gupta, learned counsel submitted that eventhough UP Public Service Commission has recommended 6599candidates on the basis of the vacancies available, 906 candidates wereleft out and were not issued appointment orders and prayed for directionthat the 906 candidates be issued appointment orders. It is pertinent tonote that these 906 candidates were ranked lower in the merit list thanthe last selected candidate in their respective category under thereservation limit as identified by the Personnel Department, thereforeappointment orders were not issued to them. This cannot be said to bearbitrariness or discrimination as selection of candidates was on the basisof the merit list. Further, the revised requisition dated 20.08.2014, on thebasis of which the impugned office memorandum was issued itself wasa case of excessive requisition, that is, beyond the permissible limits setout by the UP Reservation Act, 1994. As result of this excessiverequisition, 906 extra candidates recommended could not be issuedappointment orders after the revision.70. As pointed out earlier, the revised requisition dated 20.08.2014and the revised notification of the UP Public Service Commission itselfwere in excess of the permissible limits of reservation as per UPReservation Act, 1994. We cannot pass direction to accommodate thesurplus candidates as that would be in excess of the permissible limit asprescribed by the Act and would be in violation of prescribed limits ofreservation as per the statutory provisions of UP Reservation Act, 1994.In exercise of power under Article 142 of the Constitution of India, if weare to issue direction to appoint 906 candidates, it will be crossing thelimits of 50% reservation which would be violation of the constitutionalprovisions and the UP Reservation Act, 1994. Even assuming that therespondent State was not diligent in carrying out the proper quantifiabledata of existing working strength in different categories and ascertainingthe vacancies position under different categories, it needs no reiterationthat wrong cannot be corrected by committing another wrong.

71. It is fairly well-settled that the selected candidates do nothave any indefeasible right to be appointed. As held in State of Biharand Others v. Amrendra Kumar Mishra (2006) 12 SCC 561, merelybecause the names of candidates were included in the provisional selectlist, they do not acquire any indefeasible right to be appointed. Merelybecause UP Public Service Commission has recommended the names

Aof 906 candidates, they do not acquire any indefeasible right for beingappointed.

72. In the counter affidavit filed by the State of U.P., it is statedthat the candidates who were selected but not issued appointment letterfiled Writ Petition No.6198 of 2016 and the High Court vide orderBdated 02.03.2016 has directed the State to issue appointment letter infavour of the petitioners thereon. On request from the AgriculturalDepartment, the Government after taking the opinion of Chief StandingCounsel has filed the Special Appeal before the Division Benchchallenging the order dated 02.03.2016. The said Special Appeal wastagged with the Writ-C No.34196 of 2015. Since in Writ-C No.34196 ofC2015, the High Court quashed the revised requisition dated 12.10.2014and the result and quashed the entire selection process subsequent tothe declaration of the written examination, consequently the Special Appealcame to be dismissed.

73. So far as the present vacant position in the counter affidavitDfiled by the State, it is stated that there are total vacancies of 4838 andthe next selection process for selecting 2050 candidates has been sent.The relevant portion of the counter affidavit filed by the State of U.P.before this Court reads as under:-

“…….It is pertinent to mention that the Department currentlyEhas total present vacancy of 4838, and has accordingly sent arequisition letter to the Subordinate Services Selection Commissionfor selecting 2059 candidates. So, effectively as of today 2779vacancies have still not been requisitioned keeping in mind 959(906+53) posts under the consideration on which appointment orderwere not issued.F

break-up of the current requisition of above mentioned 2059vacancies is as follows:

No. of vacancies General SC/ST OBC requisitionedG2059 1031 473 555 After filing the aforesaid vacant posts, the vacancies of the said post as per cadre strength is as follows: 2779 1761 534 484

74. Mr. Mehul Gupta, learned counsel on behalf of some of theappellants has prayed that power under Article 142 of the Constitutionof India be exercised for extending the benefit of beneficial provisionto overcome injustice caused to 906 candidates who were not issued theappointment orders. It was submitted that the technical flaw in the revisedrequisition was in excess of the prescribed limit of reservation being inexcess of the permissible limits under the UP Reservation Act, 1994 andthe same can be rectified by exercising power under Article 142 of theConstitution of India. Learned counsel further submitted that 906candidates in three different categories i.e. SC, ST and OBCs havesuccessfully completed the written examination and the interview andthese successful candidates have nothing to do with these technical flawsand therefore, prayed that in order to do complete justice, the powerunder Article 142 of the Constitution of India be exercised. In support ofhis contention, Mr. Mehul Gupta, learned counsel has placed relianceupon Union of India and Others v. Permanand Singh 1999 SupremeCourt Cases (L&S) 625 and D.M. Premkumari v. DivisionalCommissioner, Mysore Division and Others (2009) 12 SCC 267.

75. Pointing out that even presently, there are 2779 vacancies andthat 906 vacancies are kept apart, Mr. Mehul Gupta, learned counselappearing for 906 candidates has submitted that 906 candidates can beaccommodated in the aforesaid 2779 vacant posts existing as on date.This contention does not merit acceptance. The present vacancies i.e.4838 and the available vacancies i.e. 2779 are the future vacancies whichare to be filled up by fresh advertisement and by participation of all theeligible candidates including the 906 candidates and other unsuccessfulcandidates. 2779 vacancies existing as on date, which are the vacanciesas on date i.e. in 2019 cannot be filled up by the candidates who gotselected pursuant to the advertisement in 2013-2014.

76. Article 142 of the Constitution of India confers wide powerupon the Supreme Court to do complete justice between the parties.Though the powers conferred on the Supreme Court by Article 142 arevery wide, the same cannot be exercised to pass an order inconsistentwith express statutory provisions of substantive law. In Ramji VeerjiPatel and Others v. Revenue Divisional Officer and Others (2011)10 SCC 643, the Supreme Court held that the power under Article 142of the Constitution of India is to be exercised very carefully and sparingly.The power under Article 142 of the Constitution of India can be exercised

Aso as to do complete justice between the parties. However, as held inSupreme Court Bar Association v. Union of India and Another(1998) 4 SCC 409, though the power under Article 142 of theConstitution are plenary in nature, the same cannot be construed to meanthat the power can be used to supplant the substantive law applicable tothe case. In the case in hand, as discussed earlier, as per the provisionsBof Uttar Pradesh Public Services (Reservation for Scheduled Castes,Scheduled Tribes and Other Backward Classes) Act, 1994, specificpercentages of vacancies have been reserved for different categoriesviz., (a) Scheduled Castes – 21% (b) Scheduled Tribes – 2% and(c) OBC – 27%. In any recruitment, this statutory permissible limit ofCreservation not exceeding 50% has to be maintained. The power underArticle 142 of the Constitution of India cannot be exercised to supplantthe statutory provision under the UP Reservation Act, 1994. In our view,in exercise of power under Article 142 of the Constitution of India, nodirection can be issued to the State of UP to issue appointment orders tothe 906 candidates.D

77. Summary of Conclusion:-

(i) The Office Memorandum dated 12.10.2014 issued by the UPPublic Service Commission revising the number ofvacancies is based upon the revised requisition of theEGovernment dated 20.08.2014. The revised requisition ofthe Government dated 20.08.2014 was only to rectify thewrongful calculation of the number of vacancies in differentcategories and to comply with the requisite percentage ofquota of reservation in different categories as per UttarPradesh Public Services (Reservation for Scheduled Castes,FScheduled Tribes and Other Backward Classes) Act, 1994;

(ii) In view of Rule 15 and Rule 6 of UP Subordinate AgricultureServices Rules, 1993 (Agriculture Service Rules, 1993), theRecruitment Authority is empowered to rectify the wrongfulcalculation and make revised requisition of number ofGvacancies in different categories which is in accordance withthe provisions of UP Reservation Act, 1994 and AgricultureService Rules, 1993;

(iii) Absorption of diploma holders were required to be done onlyagainst the “General quota”. The High Court was not rightH

in saying that the diploma holders ought not to have beenabsorbed against the “General category” so as to alter theadvertised number of posts against the “General category”;

(iv) Revising the number of vacancies in different categories tosatisfy the statutory requirement of reservation quota as perUP Reservation Act, 1994 and this would not amount tochanging the rules of the game after the commencement ofthe selection process;

(v) Having participated in the interview and when they failed inthe final selection, it is not open to the private respondents/intervenors to turn around and challenge the revisednotification dated 12.10.2014 and the final select list dated21.05.2015;

(vi) The filling up of the unfilled horizontal reservation by thecandidates from the respective vertical reservation is inaccordance with the policy of the government and the samecannot be faulted with;

(vii) In view of the judgment in M/s Shenoy and Co.,Represented by its partner Bele Srinivasa Rao Street,Bangalore and Others v. Commercial Tax Officer, CircleII, Bangalore and Others (1985) 2 SCC 512 andFidaHussain and others v. Moradabad Development Authorityand Another(2011) 12 SCC 615 and other judgments,challenging the common judgment only in WP-C No.34196of 2015 and non-challenge to the other writ petitions, will notamount to res judicata;

(viii) The 906 candidates were not issued the appointment ordersin order to keep the appointment within the permissiblepercentage of reservation as perUP Reservation Act, 1994.The power under Article 142 of the Constitution of Indiacannot be exercised to issue direction to the firstrespondent-State to issue appointment orders to 906candidates.

78. In the result, the common impugned judgment dated 10.02.2017of the High Court in WP(C) No.34196 of 2015 and batch of writpetitions is set aside and these appeals are allowed. The privaterespondents/intervenors and 906 candidates who were not issued

1124SUPREME COURT REPORTS

Aappointment orders and those who filed writ petitions before the HighCourt shall be granted age relaxation as one-time measure to participatein the upcoming recruitment. Age relaxation is strictly one-time mea-sure. Consequently, all the intervenors/impleading applications stand dis-missed.

Devika Gujral

Appeals allowed.