REPORTABLE IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4815 OF 2019

ANUPAL SINGH AND OTHERS             ...Appellants  

VERSUS

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

WITH

C.A.  No.  4817/2019,  C.A.  No.  4816/2019,  C.A.  No.  4819/2019, C.A.  No.  4818/2019,  C.A.  No.  4821/2019,  C.A.  No.  4820/2019, C.A.  No.  4830/2019,  C.A.  No.  4829/2019,  C.A.  No.  4833/2019, C.A.  No.  4825/2019,  C.A.  No.  4827/2019,  C.A.  No.  4834/2019, C.A.  No.  4828/2019,  C.A.  No.  4824/2019,  C.A.  No.  4835/2019, C.A. Nos.4822-23/2019, C.A. No.4836/2019, C.A. No. 4826/2019, C.A. No.  4832/2019, C.A. No.  4831/2019

J U D G M E N T

R. BANUMATHI, J.

These appeals arise out of the judgment dated 10.02.2017 in

Writ-C No.34196 of  2015 and batch matters passed by the High

Court of Judicature at Allahabad in and by which the High Court

while  upholding  the  result  of  written  examination  for  the  post  of

Technical  Assistant-Group-C  Agriculture  Department,  quashed

selection  process  subsequent  to  the  written  examination  and

directed the Principal Secretary, State of U.P. to send requisition to

the  Uttar  Pradesh  Public  Service  Commission  on  the  basis  of

quantifiable  data  and  cadre  strength  as  well  as  actual  persons

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working  in  different  categories  so  that  the  interview  may  be

conducted 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  an

advertisement  No.A-5,  E-1/2013  dated  22.10.2013  inviting

applications for 6628 vacancies of Subordinate Agriculture Services,

Cadre-lll  (Technical Assistant Group-C). In the said advertisement

for the total requisitioned 6628 vacancies, category-wise vacancies

are as under:-

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

Advt.  No.  A-5,  E-1/2013 dt. 22.10.2013

Total vacancies: 6628

Unreserved

3616

SC

2211

ST

235

OBC

566

 Horizontal reservation in original advertisement is as under:-

Women Handicapped Dependents of Freedom Fighter Ex-servicemen

1325 253 132 331

The appellants as well as the private respondents applied for and

appeared in the written examination held on 30.03.2014. As per the

Uttar Pradesh Public Services (Reservation for Scheduled Castes,

Scheduled Tribes and Other Backward Classes) Act, 1994 (for short

“UP  Reservation  Act,  1994”),  specific  percentages  of  vacancies

have been reserved 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 of OBC–27%. It was brought to the notice of the

State Government that there was wrongful calculation of category-

wise vacancies in the earlier requisition and therefore, the earlier

requisition was required to be revised. After a detailed inquiry as to

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the cadre strength of Technical Assistant – Group C and the actual

working strength of persons in different categories, it was found that

initially the number of requisitioned candidates in the category of

General/Unreserved  and  OBC  were  wrongly  calculated.  It  was

noticed that the diploma holders who were required to be appointed

against “Unreserved quota”; but were wrongly appointed against the

“OBC quota” and the same was to be rectified.  According to the

State,  after  adjustment  of  diploma  holders  against  “General

Category” and in order to fulfill  the requirements of  constitutional

and statutory mandate of  reservation,  the State Government  has

reworked the vacancies for different categories of persons and sent

the revised requisition for the vacancies for different categories. The

State  Government  after  taking  opinion  of  the  Department  of

Personnel  vide its  order  dated  20.08.2014  approved the  revised

vacancies for different categories of persons in accordance with the

applicable reservation rules and accordingly, revised the requisition.

Based  on  the  said  order  dated  20.08.2014,  Department  of

Agriculture  vide its  letter  No.AC/101  dated  20.08.2014  sent  the

revised  requisition  for  6628  posts  to  the  UP  Public  Service

Commission as under:-

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

Government Order No.941/12- 4-14-1992/2014  dt. 20.08.2014

Total vacancies: 6628

Unreserved

2515

SC

1882

ST

201

OBC

2030

     Horizontal reservation in amended requisition is as under:

Women Handicapped Dependents of Freedom Fighter Ex-servicemen 1325 252 132 330

Based  upon  the  above  revised  requisition,  on  15.09.2014,  UP

Public  Service  Commission  declared  the  result  of  the  written

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examination  wherein,  both  the  appellants  as  well  as  the  private

respondents  were  declared  successful.  After  declaration  of  the

result  of  written examination,  the UP Public  Service Commission

issued  an  Office  Memorandum  dated  12.10.2014  notifying  2515

posts for Unreserved/General category; 1882 posts for SC category;

201 posts  for  ST category  and 2030 posts  for  OBC category  in

consonance  with  the  government  order  dated  20.08.2014.  The

successful  candidates  who  cleared  the  written  examination

appeared for interview held from 27.10.2014 onwards. Finally, when

the result of select list candidates was declared on 21.05.2015, the

private respondents did not qualify.

3. Number  of  writ  petitions  came to  be  filed  before  the  High

Court by the unsuccessful candidates against respondents No.1 to

4 and by impleading 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 direction to respondents No.1 to 4 to prepare the

result  afresh  without  giving  effect  to  Office  Memorandum  dated

12.10.2014.  It  was  contended  that  change  in  the  number  of

vacancies in different categories is illegal and the same amounts to

changing  the  rules  of  the  game  in  the  middle  of  the  selection

process. The impugned result was also assailed on the ground that

it is in contravention to Section 3(1) of UP Reservation Act, 1994

and Rule 15(3) of UP Subordinate Agriculture Services Rules, 1993

(Agriculture  Service  Rules,  1993)  and  that  the  percentage  of

reservation to SC/ST and OBC categories crossed the upper limit of

50%.  

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4. After referring to decisions on the aspect of reservation,  vide

the impugned judgment, the High Court allowed the writ petitions

inter alia holding as under:-  

 The entire maneuvering in the instant case has taken place in the

garb  of  diploma  holders  wherein,  1749  diploma  holders  in  the

department were adjusted/regularized in the year 1998. Even at

the time of their regularization, their heads were counted and the

same is reflected from their regularization orders and once their

heads were already counted qua their respective categories and

reserved  category  of  persons  especially  OBC  adequately

represented,  there  was  no  occasion  for  putting  all  the  diploma

holders against the open category.

 After  the  declaration  of  result  of  written  examination  on

15.09.2014,  changing  the  number  of  vacancies  for  different

categories amounts to violation of Rule 15(3) of Agriculture Service

Rules, 1993 during the pendency of the advertisement and thus,

depriving 3303 general category candidates even to appear in the

interview and allowing 4392 more candidates of OBC category to

appear for interview by bringing them in the zone of consideration

for the selection, amounts to changing the 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  categories  have  been

shown to be selected whereas, only 12% candidates under open

category  have  been  selected  and  the  entire  selection  is  in

contravention to Section 3(1) of UP Reservation Act, 1994 and the

Rule 15(3) of the Agriculture Service Rules, 1993.

On the above findings and other reasonings, the High court allowed

the writ petitions by holding that subsequent to the declaration of

the result of written examination, the entire selection is vitiated and

as  such,  the  same  cannot  be  sustained.  Placing  reliance  upon

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Union of India and Others v. O. Chakradhar (2002) 3 SCC 146, the

High Court held that when the court comes to the conclusion that

the selection is  tainted,  there is  no necessity  to  serve individual

notices and as such, the entire selection can be cancelled. The High

Court issued a direction to the Principal Secretary, Government of

U.P.  to  send  a  fresh  requisition  to  the  UP  Public  Service

Commission on the basis of quantifiable data, existing strength of

cadre as well as the actual persons working in different categories

forthwith so that interview be conducted at the earliest and that the

entire exercise be completed within four months.

5. Being aggrieved by the impugned judgment,  the appellants

who  are  the  selected  candidates  and  have  already  joined  their

respective posts have filed these appeals before this Court.  Vide

order dated 03.03.2017, this Court ordered to maintain status-quo

as existing on the said date.

6. The batch of appeals were heard at length and the hearing

stretched over number of dates.  We have heard Mr. P.S. Patwalia,

learned Senior counsel, Mr. M. Karpaga Vinayagam learned Senior

counsel,  Mr.  Guru  Krishna  Kumar,  learned  Senior  counsel,  Ms.

Mahalakshmi  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 on behalf of respondent-State. We have

also heard Mr. Alok Mishra, learned counsel, Mr. K. Parmeshwar,

learned  counsel,  Mr.  Anil  Nauriya,  learned  counsel,  Ms.  Sumita

Hazarika, learned counsel and Mr. Dinesh Kumar Tiwary, learned

counsel appearing on behalf of the applicants-respondents.

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Contentions of the appellants

7. Mr.  P.S.  Patwalia,  Senior  Counsel:   Contending  that  the

revised  requisition  was  in  accordance  with  the  provisions  of  UP

Reservation 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 State Backward Class Commission, the Department

of Agriculture has undertaken an exercise and found that there was

wrongful  calculation of  the category-wise vacancy and the earlier

requisition  was  required  to  be  rectified.  Learned  Senior  counsel

submitted that  the revised Office Memorandum of  the UP Public

Service  Commission  dated  12.10.2014  is  based  on  the  revised

requisition of the Department of Agriculture dated 20.08.2014 and

only the breakup of  vacancies category-wise has been reworked

and revised and while so, the High Court erred in saying that the

rules of the game had been changed in the midst of the selection

process vitiating the selection. It  was submitted that the eligibility

criteria have not been changed at all and the High Court erred in

relying upon K. Manjusree v. State of Andhra Pradesh and another

(2008)  3  SCC 512 and  Hemani  Malhotra v.  High Court  of  Delhi

(2008) 7 SCC 11 for setting aside the process of selection from the

stage of declaration of result  of the written examination. Learned

Senior  counsel  further  submitted  that  the  private

respondents/intervenors  having  participated  in  the  interview  and

having found that they are unsuccessful, have filed the writ petitions

and they are estopped from challenging the Office Memorandum

dated 12.10.2014 and the selection process.  

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8. Mr.  M.  Karpaga  Vinayagam,  Senior  Counsel:  Learned

Senior counsel submitted that the revised Office Memorandum of

UP Public Service Commission dated 12.10.2014 was based upon

the revised requisition sent by the Department of Agriculture dated

20.08.2014  and  only  when  the  private  respondents  found

themselves  unsuccessful,  they  chose  to  challenge  the  Office

Memorandum dated  12.10.2014.  Learned  Senior  counsel  further

submitted that the private respondents have not raised any protest

over the change in number of vacancies and the appellants having

been  selected  and  presently  working,  great  prejudice  would  be

caused to them if the entire selection process is set aside.

9. Mr. Guru Krishna Kumar, Senior Counsel:  Learned Senior

Counsel submitted that the State has filed detailed counter affidavit

explaining the reason for revised requisition and that the same was

done only to fulfill the constitutional mandate of reservation and the

statutory provisions in UP Reservation Act, 1994. The High Court

has  not  considered  this  aspect  in  proper  perspective.  Learned

Senior counsel further submitted that the private respondents have

not shown as to how they are affected by the increase in number of

posts for OBCs. It was contended that non-impleading of successful

parties in the writ petition is fatal and the High Court was wrong in

saying that impleading of some of the successful candidates would

be enough. Learned Senior counsel further contended that the rules

of the game was not changed and only the category-wise vacancies

were changed and the Government  has the power to  rectify  the

requisite  number  of  vacancies in  order  to  fulfill  the constitutional

mandate of reservation and the provisions of UP Reservation Act,

1994.

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10. Ms. Mahalakshmi Pavani, Senior Counsel:  Reiterating the

above  submissions,  learned  Senior  counsel  submitted  that  the

eligibility criteria for selection of Technical Assistant – Group C has

not  been  changed  at  all;  but  only  the  breakup  of  vacancies

category-wise has been reworked and the High Court was not right

in setting aside the selection of the appellants. It was submitted that

the successful candidates have been working for more than three

years and their  selection and appointment are based on merit  in

different  categories  and the  entire  selection  cannot  be  set  aside

upsetting the entire process.

11. Ms. Vibha Datta Makhija, Senior Counsel:  Reiterating the

above submissions,  learned Senior  counsel  contended that  after

issuing  earlier  requisition  dated  03.10.2012,  department  has

undertaken  an  exercise  and  found  that  there  was  wrongful

calculation  of  category-wise  vacancies.  It  was  further  contended

that  a  complaint  was  made  before  the  Backward  Classes

Commission and after  the complaint,  on direction from the State

Government,  the  Department  of  Agriculture  has  undertaken  the

exercise  and  found  that  there  was  wrongful  calculation  of  the

category-wise vacancy and the earlier requisition was thus required

to be rectified. It was submitted that when there is no allegation of

mala fide/arbitrariness, the entire selection process cannot be set

aside.  

12. Mr.  Mehul  M.  Gupta and  Mr.  A.  Subba  Rao,  learned

counsel have also reiterated the above submissions and inter alia

made their contentions.  Mr. Mehul M. Gupta prayed to exercise the

power  under  Article  142  of  the  Constitution  of  India  to  issue

appointment orders to 906 candidates.

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Contentions of the State

13. Mr.  S.R.  Singh,  Senior  counsel:  Taking  us  through  the

detailed counter affidavit filed by the State, learned Senior counsel

has submitted that the High Court was not right in holding that the

revised requisition as amounting to changing the rules of the game

during  the  process  of  selection.  Learned  Senior  counsel  has

submitted  that  mere  rectification  of  mistake  in  the  calculation  of

vacancies category-wise before commencement of interview would

not amount to changing the rules of the game during the process of

selection. Learned Senior counsel also made elaborate submissions

as to the absorption of diploma holders against the posts meant for

“General quota”.   It was submitted that to keep the appointments

within the permissible statutory limits, the appointments were issued

only  to  6599 candidates and 29 candidates withheld for  want  of

details.   It  was  submitted  that  906  candidates  were  not  given

appointments as it would be beyond the permissible statutory limit

of reservation under the UP Reservation Act, 1994.

Contention of the private respondents

14. Mr.  Alok  Mishra,  learned  counsel:  Learned  counsel

submitted that changing the number of vacancies category-wise is

in  violation  of  the  statutory  provisions  and  Rule  15(3)  of  the

Agriculture Service Rules, 1993 and also the constitutional mandate

was infringed and by revising the number of posts in the various

categories, substantial number of candidates were illegally deprived

of the opportunities to appear in the interview. It was contended that

Office  Memorandum  dated  12.10.2014  changing  the  number  of

vacancies category-wise suffers from vice of arbitrariness and the

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High Court rightly held that the rules of the game were changed

during the process of selection and the High Court rightly set aside

the selection of the appellants directing holding of interview afresh

based on the quantifiable date collected and taking into account the

cadre strength and the actual  working strength.  Learned counsel

further  submitted  that  since  the  rules  were  violated  and  the

constitutional mandate was infringed, as held in Union of India and

others v. O. Chakradhar (2002) 3 SCC 146, individual notices were

not required to be sent to the selected candidates and non-issuance

of  notice  to  individual  selected  candidates  will  not  affect  the

correctness of the impugned judgment.  

15. Mr.  K.  Parameshwar,  learned  counsel:  Learned  counsel

submitted  that  challenging  the  Office  Memorandum  dated

12.10.2014 issued by the UP Public Service Commission and also

the  selection  process  and  the  final  selection  list,  number  of  writ

petitions  were  filed  and  the  appellants  have  challenged  the

judgment in the lead case in WP (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

not chosen to challenge the judgment passed in number of other

writ petitions remaining unchallenged and operate as  res judicata.

In support of his contention, learned counsel placed reliance upon

Sri Gangai Vinayagar Temple and Another v. Meenakashi Ammal

and Others  (2015) 3 SCC 624.  Insofar as horizontal reservation,

the learned counsel further submitted that wherever the candidates

for horizontal reservation were not available, they were filled up with

the  candidates  with  the  vertical  reservation  which  is  not  in

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accordance with law and the consistent view taken by the Supreme

Court.  The learned counsel submitted that considering number of

irregularities  in  the  selection  process,  the  High  Court  rightly  set

aside the selection process subsequent to the stage of declaration

of  written  examination  and  the  impugned  judgment  warrants  no

interference.

16. Mr. Anil Nauriya, learned counsel submitted that the terms

and conditions for the selection were set out in the advertisement

and the rights of the candidates for selection to be considered in

accordance  with  the  rules  as  they  existed  on  the  date  of  the

advertisement and not by the subsequent events.  In support of his

contention,  the learned counsel  placed reliance upon  N.T.  Devin

Katti  and  others  v.  Karnataka  Public  Service  Commission  and

others  (1990) 3 SCC 157.  The learned counsel further submitted

that  by  the  adjustment  of  diploma  holders  against  the  “general

quota”, the State erred in revising the requisition of the vacancies in

different  categories  which  prejudicially  affect  the  interest  of  the

candidates  who appeared  in  the examination and passed in  the

written  examination  and  the  High  Court  rightly  set  aside  the

selection  process  subsequent  to  the  stage  of  declaration  of  the

written  examination.   Reliance  was  placed  upon  Government  of

India through Secretary and another  v.  Ravi  Prakash Gupta and

another (2010) 7 SCC 626.

17. Mr.  Dinesh Kumar Tiwary,  learned counsel:  Drawing our

attention  to  Uttar  Pradesh  State  Public  Service  Commission

(Regulation of Procedure and Conduct of Business) Act, 1974, the

learned counsel submitted that the conduct of business by the UP

Public Service Commission shall be strictly in accordance with the

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provisions and the revised Office Memorandum dated 12.10.2014

changing  the  number  of  vacancies  in  different  categories  is

unsustainable and the High Court rightly set aside the same and

directed  the  selection  process  to  be  continued  and  directed  the

State to send requisition to the UP Public Service Commission on

the basis of quantifiable data and cadre strength as well as actual

persons working in different categories.  Reliance was placed upon

K. Manjusree.

18. Upon  consideration  of  the  above  submissions  and  the

impugned judgment  and  other  materials  on  record,  the  following

points arise for determination:-

(i) Whether  the revised requisition dated 20.08.2014 and the

office memorandum of UP Public Service Commission dated

12.10.2014  is  only  rectification  of  wrongful  calculation  of

category-wise vacancies?

(ii) Whether the revised Office Memorandum dated 12.10.2014

suffers from arbitrariness as contended by the respondents?

(iii) Whether the office memorandum dated 12.10.2014 revising

the breakup of  vacancies would amount  to change in the

rules of the game during the process of selection?

(iv) Having  had  full  knowledge  of  revising  the  category-wise

vacancies  and  having  consciously  participated  in  the

interview,  whether  the  unsuccessful  candidates-private

respondents-intervenors are estopped from challenging the

selection of the successful candidates?

(v)  When the regularization of diploma holders was not under

challenge in the writ petitions filed in the year 2015, whether

the  High  Court  was  right  in  going  into  the  legality  of  the

regularization  of  the  diploma  holders  and  recording  an

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adverse  finding  regarding  the  absorption  of  the  diploma

holders against the General quota?

(vi)  Whether  revised  requisition  of  the  number  of  vacancies

category-wise  has  caused  prejudice  to  the

General/Unreserved category  candidates as contended by

the respondents?  

(vii) Whether 906 candidates are entitled to seek for direction for

issuance of appointment orders?

Revised requisition dated 20.08.2014 and Office Memorandum

dated  12.10.2014  notifying  revised  vacancies  in  different

categories  –  in  consonance  with  the  provisions  of  UP

Reservation Act, 1994 and UP Subordinate Agriculture Service

Rules, 1993 (UP Service Rules, 1993)

19. The posts of Technical Assistant Grade-III are Class-III Posts

which are governed under the Agriculture Service Rules, 1993. The

posts were restructured with effect from 25.10.2007.  The pay scale

of  the  aforesaid  posts  was fixed  as  Rs.3200-4900  and  the  total

number of  sanctioned posts  of  Technical  Assistant  Grade-III  was

10,531.  After restructure of the posts, the details of the vacancies

were  worked  out  in  which  it  was  found  that  10,531  posts  were

sanctioned  out  of  which  5,860  persons  were  working.  On  that

ground, the total vacancies were determined as 4,671; after making

deduction of 2% as per Government Order dated 05.03.2002, the

total  vacant  posts were shown as 4,578 and the requisition was

sent  to  the  UP  Public  Service  Commission  on  03.10.2012.

Subsequently, the number of posts were increased by 2,092 out of

which, as per Government Order dated 05.03.2002, 2% had been

deducted and  vide requisition dated 30.04.2013, a requisition was

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sent showing the increased vacant posts as 2,050 out of which total

number of vacancies against the OBC quota was shown as 554.  In

the  earlier  requisition  dated  03.10.2012,  the  total  number  of

vacancies against the OBC 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 vacancies

of the year 2013 determined the vacancies and sent it to the State

Government. Accordingly, the State Government sent the requisition

to the UP Public Service Commission showing total number of posts

as 6,628 out of which 3,616 posts were shown against the General

quota, 2,211 posts shown against the Scheduled Castes, 235 posts

reserved for the Scheduled Tribes and 566 posts were figured out

against  Other  Backward  Classes  and  accordingly,  UP  Public

Service  Commission  published  the  advertisement  dated

22.10.2013.

21. After the publication of the vacancies, a complaint was filed

before  the  Backward  Classes  Commission,  UP complaining  that

instead of  showing actual  vacancies of  the reserved category  of

Other  Backward  Classes,  566  posts  have  been  shown  in  the

advertisement.  On such complaint, the Department of Agriculture

as well as UP Public Service Commission were called upon to reply

to  the  aforesaid  complaint.   It  was  thereafter,  the  Agriculture

Department undertook an exercise and found that  on account  of

wrongful  calculation  of  the  category-wise  vacancy,  the  earlier

requisition  was  required  to  be  rectified.   After  undertaking  the

exercise as directed by the Authority,  it  was found that  the total

number of “General category” candidates was wrongly figured out

15

and shown as 2,622; while in fact 1,749 employees (979 OBC and

770 Others) who were absorbed on account of having a diploma

from the Government Agriculture School during the years 1981 to

1987,  were  also  required  to  be  counted  against  the  “General

category”.

22. The  Government  Agriculture  School,  Bulandshahar,

Government  Agriculture  School,  Chargawan-Garakhpur  and

Government Agriculture School, Jhansi were run by the Agriculture

Department.  The schools were providing certificate of two years in

Krishi  Prasar  Diploma  and  the  persons  undertaking  aforesaid

diploma during 1981 to 1987 were required to be appointed directly

without any selection. However, after enforcement of the Agriculture

Service Rules, 1993 since the diploma holder of 1981 to 1987 could

not be appointed, the Directorate has sought guidelines from the

State  Government  vide its  letter  dated  22.01.1998.  The  State

Government vide its letter dated 04.06.1998 granted the relaxation

and directed the appointment of Agriculture Diploma Holders who

were 1822 in number, out of which 1749 had joined up to 1998.

Since at the time of determination of the vacancy, the OBC category

persons appointed on the basis of the Agriculture Diploma Holders

Certificate were also counted against the vacancy in OBC category

while  they  were  not  required  to  be  counted  against  the  OBC

category, the wrongful calculation had been arrived at.  The earlier

requisition  sent  showing  only  566  vacancies  against  the  “OBC

quota” while in fact it  should have been 2030, as all the diploma

holders were appointed against the “General quota” and they have

not  been appointed  against  the  “OBC quota”.   According  to  the

department, subsequent requisition was merely a rectification of the

16

earlier mistake.  On the date of advertisement, the actual vacancies

of  OBC was 2030 but on account of  wrongful  calculation by the

department, it was advertised as 566.

23. It is thus due to the wrongful calculation of OBC quota, the

earlier  requisition  was  sent  showing  the  vacancies  against  OBC

quota as only 566; while in fact vacant posts against OBC quota

should be 2030.  It is in this context, the Department of Agriculture

has reworked the vacancy against various categories and sent the

revised requisition as under:-

Total  number  of sanctioned posts

50% General Category

21% Scheduled Caste

2% Scheduled Tribe

27% Other

Backward Classes

10559 5280 2217 211 2851 Employees working - 3796

2713 297 6 780

Vacant – 6763 2567 1920 205 2071 After 2%  deduction as per Government  Order – 6628

2515 1882 201 2030

24. After taking the opinion of the Personnel Department, the first

respondent vide order dated 20.08.2014 approved the vacancies for

different  categories of  persons in  accordance with the applicable

Agriculture Service Rules and sent the revised requisition as under:-

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

Government Order No.941/12- 4-14-1992/2014  dt. 20.08.2014 Total vacancies: 6628

Unreserved

2515

SC

1882

ST

201

OBC

2030

On the basis of the above government order dated 20.08.2014, the

Department  of  Agriculture  vide its  letter  No.  AC/101  dated

20.08.2014  sent  the  above  revised  requisition  to  the  UP Public

Service  Commission.   According  to  the  State,  the  category-wise

17

vacancy position was changed only after a meeting was held of all

concerned i.e. representatives of the Karmik Department as well as

the  representatives  of  the  Administrative  Department  and  it  was

found  that  a  wrongful  calculation  of  category-wise  vacancy  had

been sent earlier which was likely to result in anomalies in the total

representation of each category in total cadre strength of Technical

Assistant Grade-III in the Agriculture Department.  Hence, revised

requisition  was  sent  on  20.08.2014  from  the  Administrative

Department to the Director, Agriculture who in turn was directed to

communicate the same to the UP Public Service Commission.

25. The result of the written examination published on 15.09.2014

was only based on the above revised requisition.  The declaration of

result of the written examination was issued based on the revised

requisition of the posts.  The UP Public Service Commission acted

on  the  revised  requisition  of  the  Government  dated  20.08.2014.

Before  the  candidates  were  called  for  interview,  Office

Memorandum  dated  12.10.2014  was  issued  by  the  UP  Public

Service Commission revising the number of vacancies for different

categories.  The  UP  Public  Service  Commission  has  thus  not

travelled beyond the requisition sent by the Government.

26. By the revised requisition, the State endeavoured to achieve

the  object  of  reservation  as  per  Uttar  Pradesh  Public  Services

(Reservation for  Scheduled  Castes,  Scheduled  Tribes  and Other

Backward Classes) Act, 1994. The original advertisement was for

‘3616’ posts against “Unreserved (UR) quota” and only ‘566’ against

“OBC quota” which was far less than the requisite percentage for

OBC.  As per Section 3(1) of UP Reservation Act,  1994, specific

percentage  of  vacancies  have  been  reserved  for  different

18

categories.  Section 3 of the UP Reservation Act,  1994 reads as

under:-

“3.  Reservation in favour of Scheduled Castes, Scheduled Tribes

and Other Backward Classes:-

(1)  In public services and posts, there shall be reservation at the stage

of  direct  recruitment,  the  following percentage  of  vacancies  to  which

recruitments are to be made in accordance with the roster referred to in

sub-section  (5),  in  favour  of  the  persons,  belonging  to  Scheduled

Castes, Scheduled Tribes and Other Backward 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 the category

of Other Backward Classes of the citizens specified in Scheduled-II.

Provided further that the reservation of vacancies for all  categories of

persons shall not exceed in any year of recruitment fifty per cent of the

total vacancies of that year as also fifty per cent of the cadre strength of

the service to which the recruitment of to be made.

(2)  If in respect of any year of recruitment any vacancy reserved for any

category  of  persons  under  sub-section  (1)  remains  unfilled,  such

vacancy  shall  be  carried  forward  and  be  filled  through  special

recruitment  in  that  very  year  or  in  succeeding  year  or   years  of

recruitment as a separate class of vacancy and such class of vacancy

shall  not  be  considered  together  with  the  vacancies  of  the  year  of

recruitment in which it is filled and also for the purpose of determining

the ceiling of fifty per cent reservation of the total vacancies of the year

notwithstanding anything to the contrary contained in sub-section (1).

……”

27. Section  4  of  the  UP  Reservation  Act,  1994  imposes

responsibility  and  powers  upon  the  competent  authority  for

compliance of the Act.  Section 4 reads as under:-

19

“4.  Responsibility and powers for compliance of the Act.-  

(1) The State Government may by notified order, entrust the appointing

authority  or  any  officer  or  employee  with  the  responsibility  of

ensuring the compliance of the provisions of this Act.

(2) The State Government may in the like manner, invest the appointing

authority or officer or employee referred to in sub-section (1) with

such  powers  or  authority  as  may  be  necessary  for  effectively

discharging the responsibility entrusted to him under sub-section (1).

28. Section  5  of  the  UP  Reservation  Act,  1994  is  the  penal

provisions.   Section 5  provides that  “Any appointing authority  or

officer or employee entrusted with the responsibility under Section

4(1) who wilfully acts in a manner intended to contravene or defeat

the purposes of  the Act,  shall,  on conviction,  be punishable with

imprisonment which may extend to three months or with fine…..”.

As per Section 2(a) of the UP Reservation Act, 1994, “appointing

authority”  in  relation  to  public  services  and  posts  means  the

authority  empowered  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

Rule 15 of Agriculture Service Rules, 1993, the recruitment authority

would determine the number of  vacancies to be filled during the

year for Scheduled Castes, Scheduled Tribes and other Backward

Class candidates under Rule 6.  Rule 15 reads as under:-

15.   Determination of vacancies

The Recruitment Authority would determine the number of vacancies to

be  filled  during  the  year  and  would  also  determine  the  number  of

20

vacancies for Scheduled Castes, Scheduled Tribes and other categories

candidates under Rule 6. The vacancies for direct recruitment, would be

informed to the Commission according to the prevalent rules and orders

at that time or would be notified to the Employment Office.

Rule  6  of  the  Agriculture  Service  Rules,  1993  stipulates  that

“reservation  for  Scheduled  Castes,  Scheduled  Tribes  and  other

Backward Class candidates would be done according to the orders

of  the  Government  prevalent  at  the  time  of  the  appointment.”

Agriculture Service Rules, 1993 thus clearly stipulate that it is for the

Recruitment Authority to determine the number of vacancies to be

filled  during  the  year  and  would  also  determine  the  number  of

vacancies  for  Scheduled  Castes,  Scheduled  Tribes  and  other

category  candidates  under  Rule  6.   On  noticing  that  there  was

wrongful calculation of the category-wise vacancy, the Recruitment

Authority is empowered to rectify the wrongful calculation and make

a revised requisition which is in accordance with the provisions of

UP Reservation Act, 1994 and Agriculture Service Rules, 1993.

30. Reiterating  the  well-settled  principle  that  the  percentage  of

reservation has to be worked out  in  relation to  number  of  posts

which form cadre strength, in R.K. Sabharwal and others v. State of

Punjab and others  (1995) 2 SCC 745, the Supreme Court held as

under:-

“6. The expressions ‘posts’ and ‘vacancies’, often used in the executive

instructions  providing  for  reservations,  are  rather  problematical.  The

word ‘post’ means an appointment, job, office or employment. A position

to which a person is appointed. ‘Vacancy’ means an unoccupied post or

office. The plain meaning of the two expressions make it clear that there

must be a ‘post’ in existence to enable the ‘vacancy’ to occur. The cadre-

strength  is  always  measured  by  the  number  of  posts  comprising  the

cadre. Right to be considered for appointment can only be claimed in

21

respect  of  a  post  in  a  cadre.  As  a  consequence  the  percentage  of

reservation has to be worked out in relation to the number of posts which

form the cadre-strength. The concept of ‘vacancy’ has no relevance in

operating the percentage of reservation.”

31. It emerges from the materials on record that the total number

of  sanctioned posts  is  10,559  and the  quota  of  21% Scheduled

Caste has come to 2,217 but of  which 297 persons are working

which come to 2.81% in the Scheduled Caste quota.  The rest of

vacant posts 1,920 are about 18.18% and after deduction of 2% as

per the Government Order, the revised requisition for 1,882 posts

against the Scheduled Caste quota has come to 18.18% which was

sent.  Likewise, against 2% Scheduled Tribe, total posts carved out

were 211 posts out of 10,559 posts and the working strength of the

employees is 6 which comes to 0.05%.  Out of the 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 in the

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

working employees of OBC is 780 which come to 7.38% and the

rest of the 2,071 posts come to 19.61%.  In the same way, 2,713

employees are working against the General quota which comes to

25.69% and rest of the posts required to complete 50% quota is

2,567 i.e. 24.31%.  This can be well clarified by the following chart:-

Total  number  of sanctioned posts

50% General Category

21% Scheduled Caste

2% Scheduled Tribe

27% Other Backward

Classes

10559 5280 2217 211 2851

Employees working – 3796

2713 (25.69%)

297 (2.81%)

6 (0.05%)

780 (7.38%)

Vacant – 6763 2567 (24.31%)

1920 (18.18%)

205 (1.94%)

2071 (19.61%)

22

After 2%  deduction as per  Government  Order – 6628

2515 (23.81%)

1882 (17.82%)

201 (1.90%)

2030 (19.22%)

From  the  above  tabular  column,  it  is  seen  that  the  revised

requisition is to ensure compliance of the reservation in terms of

Section 3 of the UP Reservation Act, 1994.  This aspect has not

been properly appreciated by the High Court.

32. Revising the number of vacancies in OBC category as 2030

does  not  violate  the  right  of  the  General  category  candidates

because  the  State  Legislature  has  enacted  the  Reservation  Act

No.4  of  1994  providing  for  reservation,  keeping  in  mind  the

parameters of Article 16(4) of the Constitution of India. By revising

requisition, the State has endeavoured to achieve the object of the

reservation by working out the vacancy for selection of the posts in

question  without  causing  any  prejudice  to  the  General  category

candidates. The revised requisition so made was within the purview

of the competency of the State in order to achieve the object of the

UP Reservation Act, 1994. Moreover, as rightly contended by the

appellants, the total number of vacancies have not been changed or

modified.

33. The appropriate authority has taken the cadre strength of the

Technical Assistant Grade-III as a unit in the operation of the roster

in  the  year  to  ascertain  whether  the  given  class  or  group  is

adequately represented in service.  The revised requisition of the

Department  of  Agriculture  dated  20.08.2014  was  well  within  the

purview  of  the  competence.  Moreover,  the  total  number  of

vacancies i.e. 6628 have not been changed or modified.  

34. As pointed out earlier, the category-wise vacancy position was

changed  after  a  meeting  of  all  concerned  was  held  i.e.

23

representatives  of  the  Karmik  Department  as  well  as  of

representatives of the Administrative Department and it was found

that a wrong calculation of category-wise vacancy had been sent

earlier.   If  the  original  requisition  dated  22.10.2013  was  to  be

retained, it would have resulted in anomalies of the category-wise

posts thereby contravening the provisions of  the UP Reservation

Act, 1994.  Hence, the revised requisition was sent on 20.08.2014

from the Administrative Department to the Director, Agriculture who

in  turn  communicated  the  same  to  the  UP  Public  Service

Commission.   By the revised requisition of  vacancies for  various

categories, there is no violation of any rules; on the other hand, it is

only to rectify the calculation of vacancies in different categories and

to  comply  with  the  requisite  quota  of  reservation  in  different

categories as per UP Reservation Act, 1994.  This aspect was not

properly appreciated by the High Court.

35. In para (68) of the impugned judgment, though the High Court

held that the Government has to apply the cadre strength as a unit

in the operation of the roster in order to ascertain whether a given

group  or  category  is  adequately  represented.  The  revised

requisition  dated  20.08.2014  and  the  Office  Memorandum dated

12.10.2014  of  the  UP  Public  Service  Commission  was  only  to

ensure the compliance of the provisions of the UP Reservation Act,

1994  and  to  ensure  that  the  category-wise  reservation  is  not

violated which was not kept in view by the High Court.

Absorption of the Diploma Holders

36. In para (64) of the judgment, the High Court observed that the

entire maneuvering has taken place in the garb of diploma holders

wherein,  1749  diploma  holders  in  the  department  were

24

adjusted/regularized in the year 1998 and there was no occasion for

putting all the diploma holders against open category and under the

garb  of  adjustment  of  vacancies,  the  entire  scenario  has  been

changed and thus, the entire vacancies against General category

have been usurped. The High Court held that the diploma holders

ought not to have been absorbed against the General category so

as  to  alter  the  advertised  number  of  posts  under  the  General

category.

37. As pointed out earlier, the earlier requisition was sent showing

only 566 vacancies against the OBC quota, while in fact, it should

have been 2030, as all the diploma holders were appointed against

the General quota and they have not been appointed against the

OBC quota. In this context,  we may usefully refer to the affidavit

filed by the Deputy Director, Agriculture (Training) before the High

Court on 17.03.2015 which reads as under:-

“…..the  Government  Agriculture  School-Bulandshahar,  Government

Agriculture  School-Chargawan-Gorakhpur  and  Government  Agriculture

School-Jhansi were running by the Agriculture Department. The schools

were providing certificate of two years in Krishi Prasar Diploma and the

persons  undertaking  aforesaid  diploma  during  1981  to  1987  were

required to be appointed directly without any selection. However, after

enforcement of the Service Rules 1993 since the diploma holder of 1981

to 1987 could not be appointed, the Directorate has sought guidelines

from the State Government vide its letter dated 22/1/1998. The State

Government  vide  its  letter  dated 4/6/1998 granted the  relaxation  and

directed for appointment of Agriculture Diploma Holders who were 1822

in number, out of which 1749 were joined upto 1998. Since at the time of

determination of the vacancy, the OBC person appointed on the basis of

the Agriculture Diploma holders certificate were also counted against the

vacancy in OBC category while they were not required to be counted

against  the OBC category,  the wrongful  calculation had been arrived.

25

The earlier requisition was sent and showing only 566 vacancies against

the OBC quota while in fact it should be 2030, as all the diploma holders

were  appointed  against  the  general  quota  and  they  have  not  been

appointed against the OBC quota. Subsequent requisition was merely a

rectification  of  the  earlier  mistake.  On the  date  of  advertisement,  the

actual  post  of  OBC was  lying  vacant  2030  posts  but  on  account  of

wrongful calculation it was advertised as 566…..”.

38. At the time of absorption of the diploma holders in the year

1998, there was no provision for  reservation for  Backward Class

category  in  the  concerned department;  only  by  U.P.  Reservation

(Amendment)  Act,  2002,  the  reservation  was  extended  to  the

concerned  department  and  therefore,  the  appointees/diploma

holders  have  to  be  considered  only  against  the  “general  quota”

candidates.  As seen from the above affidavit filed by the Deputy

Director,  Agriculture  (Training),  the  diploma  holders  were  not

required  to  be  counted  against  OBC  quota;  by  a  wrongful

calculation, they have been adjusted against the OBC quota which

is  not  permissible  in  law  as  reservation  cannot  be  granted

retrospectively. By the revised requisition, the Government sought to

rectify  this  mistake  which  resulted  in  alteration  in  number  of

vacancies available against certain categories. Such rectification of

mistake by Government cannot be faulted nor can this be a ground

for recalling the advertisement in question and issuing a fresh one.

The  High  Court,  in  our  view,  should  have  adopted  a  pragmatic

approach of  the matter  in  hand and considered the 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

“OBC vacancies”.

26

Office Memorandum dated 12.10.2014 revising the vacancies

category-wise – whether amounts to changing the rules of the

game after the commencement of the selection

39. The  High  Court  held  that  after  the  advertisement  dated

22.10.2013, changing the break-up of vacancies would amount to

change of the rules of the game after the commencement of the

selection process which is not permissible.  The High Court placed

reliance  upon  Madan  Mohan  Sharma  and  another  v.  State  of

Rajasthan and others (2008) 3 SCC 724.  The learned counsel for

the private respondents submitted that changing the vacancies in

different categories is illegal and the same amounts to changing the

rules of the game in the middle of the selection process.  In support

of  their  contention,  the  learned  counsel  appearing  for  the

respondents  placed  reliance  upon  Hemani  Malhotra and  K.

Manjusree.   

40. In  K.  Manjusree,  the  selection  to  ten  posts  of  District  and

Sessions Judge (Grade-II)  in the Andhra Pradesh Higher Judicial

Service in pursuance of the advertisement dated 28.05.2004, was

the subject matter of the appeal. The selection was on the basis of

written  examination  followed  by  an  interview.  There  were  no

minimum cut-off marks prescribed for clearing the interview.  After

the  selection  process  was  completed  and  the  select  list  was

prepared by the interview committee which was approved by the

Administrative Committee, when the matter was placed before the

Full Court, the Full Court authorized the Chief Justice to constitute a

committee  of  judges  for  preparing  the  list  of  candidates  to  be

recommended  for  appointment  of  District  and  Sessions  Judge

(Grade-II). Accordingly, the Chief Justice appointed a sub-committee

27

of  two  judges  which  prepared  a  fresh  list  of  candidates  for

appointment prescribing minimum qualifying marks for the interview.

The sub-committee was of  the view that  apart  from applying the

minimum  marks  for  the  written  examination,  the  cut-off

marks/percentage should be applied for interview marks also and

those who failed to secure such minimum marks in the interview,

should be considered as having failed.   The sub-committee thus

prepared a fresh merit list.  In those facts and circumstances of the

case, the Supreme Court set aside the select list by holding that the

introduction  of  the  requirement  of  cut-off  marks  for  the  interview

after  the  entire  selection  process  was  completed  amounted  to

changing  the  rules  of  the  game after  the  selection  process  was

almost complete which is impermissible.   

41. In  Hemani Malhotra,  the result of the written examination of

the Delhi Higher Judicial Service was not announced by the High

Court  of  Delhi,  and  individual  communication  was  sent  to  the

petitioners  therein,  informing  them  of  their  selection  for  the

interview. Five candidates were called for interview on various dates

and  were  informed  of  its  postponement  i.e.  the  interview  first

scheduled for 20-09-2006 was later deferred to 29-11-2006, 07-12-

2006, 23-01-2007, 05-02-2007 and was finally conducted on 27-02-

2007.  Meanwhile  on  13-12-2006,  by  a  Full  Court  Resolution,

minimum qualifying marks for the viva voce was prescribed (55% for

general candidates and 50% for SC and ST candidates). In such

facts  and  circumstances,  prescribing  minimum  marks  for  the

interview was struck down as changing the rules of the game during

selection process. Initially, there was prescription of minimum marks

for written test only and not for viva voce. The minimum marks for

28

viva voce were prescribed after written test was over and it was held

that this was not permissible.  

42. The case in hand is distinguishable from those cases where

the mode of selection was altered by fixing the cut-off marks after

the selection process had completed/commenced; whereas in the

present case only wrongful calculation in the number of vacancies in

different  categories  had  been  corrected  in  order  to  satisfy  the

percentage  of  reservation  against  various  categories  as  per  the

provisions of UP Reservation Act, 1994.  Such correction cannot be

said  to  changing  the  rules  or  basis  of  selection.   The  eligibility

criteria was not changed.

43. It is also pertinent to note that the proposition of law that rules

of  game  cannot  be  changed  after  the  selection  has  been

commenced itself has been referred for reconsideration by a larger

Bench in  Tej Prakash Pathak and others v. Rajasthan High Court

and others (2013) 4 SCC 540.  While referring the matter to a larger

Bench, in  Tej Prakash,  the Supreme Court explained the ambit of

the expression changing the rules of the game as under:-

“11. Those various cases deal with situations where the State sought to

alter (1) the eligibility criteria of the candidates seeking employment, or

(2)  the  method  and  manner  of  making  the  selection  of  the  suitable

candidates. The latter could be termed as the procedure adopted for the

selection, such as, prescribing minimum cut-off marks to be secured by

the candidates either  in  the written examination 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 the candidates to undergo some test relevant to the

nature of the employment (such as driving test as was in  Maharashtra

SRTC v. Rajendra Bhimrao Mandve (2001) 10 SCC 51).

29

15. No  doubt  it  is  a  salutary  principle  not  to  permit  the  State  or  its

instrumentalities  to  tinker  with  the  “rules  of  the  game”  insofar  as  the

prescription  of  eligibility  criteria  is  concerned  as  was  done  in  C.

Channabasavaih v. State of Mysore AIR 1965 SC 1293, etc. in order to

avoid manipulation of the recruitment process and its results. Whether

such a principle  should be applied in  the context  of  the “rules of  the

game” stipulating the procedure for selection more particularly when the

change  sought  is  to  impose  a  more  rigorous  scrutiny  for  selection

requires an authoritative pronouncement of a larger Bench of this Court.

We, therefore, order that the matter be placed before the Hon’ble Chief

Justice of India for appropriate orders in this regard.”

44. As  discussed  earlier,  the  case  in  hand  is  clearly

distinguishable  from  K.  Manjusree  (supra) and  Hemani  Malhotra

(supra).  The  diploma  holders  were  wrongly  counted  against  the

vacancies in OBC category; while they could not have been counted

against OBC category and while doing so, a wrongful calculation

had been arrived and the same has to be corrected by counting the

diploma holders against the general category.   

45. It  is  to  be  pointed  out  that  instruction  No.7  in  the

advertisement  dated  22.10.2013  stipulates  that  the  number  of

vacancies may increase or  decrease.   Agriculture Service Rules,

1993 clearly stipulate that it is the prerogative of the government to

determine the number of vacancies in accordance with the rules.

As  per  Rule  15  of  the  Agriculture  Service  Rules,  1993,  “the

recruitment authority would determine the number of vacancies for

Scheduled Castes, Scheduled Tribes and other category candidates

under Rule 6.”   Rule 6 stipulates that “reservation for Scheduled

Castes,  Scheduled  Tribes  and  other  Backward  Class  candidates

would be done according to the orders of the government prevalent

at the time of appointment.”  

30

46. Rule 15(3) of the Agriculture Service Rules, 1993 provides for

calling the successful candidates, keeping in mind the vacancy of

the reserved categories required under Rule 6 after the declaration

of result of written examination and for the adequate representation

of  each  category,  three  times  of  candidates  qua  vacancies  are

required to be invited for the interview. Thus, on the total advertised

number of seats for open category i.e. 3616 x 3 = 10848 candidates

were  eligible  under  Rule  15(3)  of  the  Agriculture  Service  Rules,

1993 to be called for interview.

47. In the impugned judgment, the High Court has observed that

by decreasing the number of seats of General category, number of

candidates  of  General  category  were  illegally  deprived  from

appearing in the interview. The High Court has also observed that

by  increasing  the  number  of  seats  of  OBC  category,  more

candidates have been called for interview, even though they were

not  eligible  as  per  advertisement  dated  22.10.2013  and  thus,

changing the number of vacancies for each category, has prejudiced

the number of candidates who are to be called for interview. The

relevant findings of the High Court is as under:-

“……Thus, on the total advertised number of seats for open category i.e.

3616 x 3 = 10848 candidates were eligible under Rule 15(3) for interview

test.  However,  by  decreasing  the  number  of  seats  vide  letter  dated

20.08.2014 i.e. 2515 x 3 = 7545 candidates were invited, thus, 10848 –

7545 = 3303 candidates were illegally deprived to appear in the interview

test.  However,  in  the  Other  Backward  Class  category,  only  566

vacancies were advertised against which only 1698 candidates would be

eligible to appear in the interview. However, by illegally increasing the

number of vacancies to 2030, 6090 candidates had been invited for the

interview. Thus, in the Other Backward Class category, 6090 – 1698 =

4392 more candidates were called for the interview, even though they

31

were  not  eligible  as  per  advertisement  dated  22.10.2013.  Thus,  by

changing the number of vacancies for different categories amounts to

violation  of  Rule  15(3)  of  Rules,  1993  during  the  pendency  of  the

advertisement and thus, depriving of 3303 general category candidates,

even to appear in the interview and allowing 4392 more candidates of

OBC in the zone of consideration for the selection, amounts to changing

the rule of the game during the process of selection……”.

48. By careful consideration, we are unable to countenance the

above view taken by the High Court that the change in number of

vacancies  has  illegally  deprived  3303  candidates  in  General

category  from appearing  in  the  interview and had benefitted  the

OBC category candidates. Be it noted that the writ petitions were

filed  by  the  candidates  who  appeared  for  interview  and  were

unsuccessful. It is not known that what were the marks secured by

the writ petitioners/candidates in the written examination and what

were their  position in  the merit  list.  The writ  petitioners  who are

unsuccessful  candidates  have  not  demonstrated  as  to  how they

were prejudicially affected by the change in number of vacancies

against  “General  category”  and “OBC category”.  The  High  Court

was not right in making a generalised observation that decrease in

the number of  vacancies against  “General  category”  has illegally

deprived 3303 candidates from appearing in the interview.

49. Notification  by  the  UP  Public  Service  Commission  dated

12.10.2014 is based upon the revised requisition of the vacancies

by the order of the Administrative Department dated 20.08.2014.  In

our view, this would not amount to changing the rules of the game

after the selection process had commenced nor it had affected the

selection process by changing the eligibility criteria.   

32

50. Having  participated  in  the  interview,  the  private

respondents cannot challenge the Office Memorandum dated

12.10.2014 and the selection.  On behalf of the appellants, it was

contended that after the revised notification dated 12.10.2014, the

private respondents participated in the interview without protest and

only after the result was announced and finding that they were not

selected,  the private respondents chose to challenge the revised

notification  dated  12.10.2014  and  the  private  respondents  are

estopped from challenging the selection process. It is a settled law

that a person having consciously participated in the interview cannot

turn around and challenge the selection process.  

51. Observing  that  the  result  of  the  interview  cannot  be

challenged by a candidate who has participated in the interview and

has  taken  the  chance  to  get  selected  at  the  said  interview and

ultimately,  finds  himself  to  be  unsuccessful,  in  Madan  Lal  and

Others v. State of J&K and Others (1995) 3 SCC 486, it was held as

under:-

“9. ….. The petitioners also appeared at the oral interview conducted by

the  Members  concerned  of  the  Commission  who  interviewed  the

petitioners as well as the contesting respondents concerned. Thus the

petitioners took a chance to get  themselves selected at the said oral

interview. Only because they did not find themselves to have emerged

successful as a result of their combined performance both at written test

and oral interview, they have filed this petition. It is now well settled that if

a  candidate  takes a  calculated  chance and appears  at  the  interview,

then, only because the result of the interview is not palatable to him, he

cannot  turn  round  and  subsequently  contend  that  the  process  of

interview  was  unfair  or  the  Selection  Committee  was  not  properly

constituted. …..”

33

52. In K.H. Siraj v. High Court of Kerala and Others (2006) 6 SCC

395, it was held as under:-

“73. The appellant-petitioners having participated in the interview in this

background,  it  is  not  open  to  the  appellant-petitioners  to  turn  round

thereafter  when  they  failed  at  the  interview  and  contend  that  the

provision of a minimum mark for the interview was not proper……..”.

53. In  Union of India and Others v. S. Vinodh Kumar and Others

(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 by

conduct would not arise in the contextual facts but the law seem to

be well settled that in the event a candidate appears at the interview

and participates therein, only because the result of the interview is

not  ‘palatable’  to  him,  he  cannot  turn  round  and  subsequently

contend that the process of interview was unfair or there was some

lacuna in the process.”

Same principle  was reiterated  in  Sadananda Halo  and  Others  v.

Momtaz Ali Sheikh and Others  (2008) 4 SCC 619 wherein, it was

held as under:-

“59. It is also a settled position that the unsuccessful candidates cannot

turn  back  and  assail  the  selection  process.  There  are  of  course  the

exceptions carved out by this Court to this general rule. This position was

reiterated by  this  Court  in  its  latest  judgment  in  Union of  India v.  S.

Vinodh Kumar  (2007) 8 SCC 100 ……The Court  also referred to the

judgment in  Om Prakash Shukla v.  Akhilesh Kumar Shukla  1986 Supp

SCC 285,  where it  has been held specifically  that  when a candidate

appears in the examination without protest and subsequently is found to

be not successful  in the examination, the question of entertaining the

petition challenging such examination would not arise……..”  

34

54. Before the declaration of the result of the written examination

on 15.09.2014, the State Government by its Government order dated

20.08.2014 revised the requisition thereby revising the number of

vacancies  in  different  categories.  UP Public  Service  Commission

issued  Office  Memorandum  dated  12.10.2014  specifically

mentioning  the  number  of  vacancies  to  be  filled  up  in  various

categories  in  accordance  with  the  requisition  sent  by  the  State

Government.  The  said  Office  Memorandum  dated  12.10.2014

published by UP Public Service Commission reads as under:-

“UPPSC

INTERVIEW PROGRAMME

Month October/November/December, 2014 (24)

OFFICE MEMORANDUM

98 Post  Subordinate  Agricultural  Service Class  III  (Provisional  Asstt.  Group  C) Agricultural Deptt. U.P.  

Reservation

2515 posts – Non-reserved 1882 posts – SC 201 posts – ST 2030 posts – OBC

Pay Scale Rs.5200-20200/- Grade Pay Rs.2400/-

Advertisement No.A-5/E-1/2013

Last Date: 21.11.2013

October – 27, 28, 29, 30

November – 05, 07, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 25, 26, 27, 28, 29

December – 01, 02, 03, 04, 05, 06, 08, 09, 10, 11, 12, 15, 16, 17, 18, 19, 20, 22, 23, 24, 2014

Before 10.00 a.m.

Dt. 12.10.2014”.

It  is thus clear that the candidates who appeared in the interview

were  well  aware  about  the  modification/revision  in  number  of

vacancies of Technical Assistants in different categories. The private

respondents/intervening applicants have appeared in the interview

with their  eyes wide open regarding the modified vacancies to be

35

filled up in various categories of the posts. Having appeared in the

interview  without  any  demur  or  protest,  it  is  not  open  to  the

candidates to challenge the selection process on the ground that

there  was  modification  in  the  number  of  vacancies  in  different

categories and they are estopped by the principle of estoppel from

challenging the same.

55. The private respondents knew that by the revised notification

dated 12.10.2014, the number of vacancies of different categories

have been changed and knowing the same, they participated in the

interview and have taken a 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 the revised notification dated 12.10.2014 and

the  revised  requisition  of  the  number  of  vacancies  in  different

categories.   Having  regard  to  the  consistent  view  taken  by  the

Supreme Court, the High Court should not have granted any relief to

the private respondents/intervenors.

Unfilled  vacancies  of  Horizontal  Reservation  filled  by

candidates of vertical reservation

56. Contention  of  the  private  respondents  is  that  as  per  the

statutory  requirement,  the  horizontal  reserved  vacancies  were

unfilled  and  those  unfilled  vacancies  of  horizontal  category  were

filled by vertical  reservation candidates/other  category candidates,

which is in violation of the statutory provisions vitiating the selection

process. On behalf of the UP Public Service Commission, Mr. Shrish

Kumar Misra,  learned counsel  has furnished the details as to the

number  of  vacancies  reserved  for  horizontal  category  and  the

36

number of candidates found suitable and placed in the respective

categories. The said details are as under:-

Category No. of Vacancies No. of Selected Candidates

Women 1325 156 Dependents of Freedom Fighters 132 45 Ex-Servicemen 330 NIL Partially Blind 84 84 Partially Deaf 84 57 One-Arm 42 42 One-Leg 42 42

On behalf of UP Public Service Commission, it was submitted that

one  of  the  policies  of  the  State  Government  regarding  horizontal

reservation is that, if the suitable candidates for filling the vacancies

reserved for such posts of horizontal reservation are not available

and the same are not  carried forward;  they are filled up by other

suitable  candidates  from  amongst  the  candidates  belonging  to

vertically  reserved  categories  according  to  their  merit.  It  was

submitted that  unfilled  horizontal  reservation vacancies were thus

filled  up  by  suitable  candidates  of  respective  vertical  categories

according to their merit which is as per the policy of the government.

The High Court  was not right  in finding fault  with the filling up of

vacancies reserved for horizontal reservation with other candidates

of respective vertical reservation.

Plea of   res judicata

57. The respondents have sought to invoke the principles of  res

judicata by contending that the common judgment dated 10.02.2017

passed by the High Court involved eighty-eight petitions which were

allowed with  the direction specified in  para (75)  of  the impugned

judgment.  Out  of  twenty-one  appeals  filed  before  this  Court,  the

judgment  of  the  High  Court  passed in  six  writ  petitions  only  viz.

37

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 have not been challenged either

by the State  or  by the appellants.   Mr.  K.  Parameshwar,  learned

counsel  has  contended  that  when  the  appellants  have  not

challenged the common judgment  rendered in  all  the eighty-eight

writ petitions and in the present appeals, only the judgment rendered

in  Writ-C  No.34196  of  2015  and  few  other  writ  petitions  are

challenged, the judgment rendered in other writ petitions having not

been  challenged,  have  attained  finality  and  thus,  operate  as  res

judicata. In support of his contention, the learned counsel has placed

reliance upon  Sri Gangai Vinayagar Temple  wherein, the Supreme

Court held that when the common judgment was passed in two or

more suits and the judgment and decree passed in two or more of

the suits have not been challenged, the decree not assailed there

upon, meta morphoses into the character of a “former suit” and the

same operates as  res judicata.  It was therefore, contended that in

the  instant  proceedings,  the  principle  of  res  judicata  would  arise

since  the  appellants  have  not  chosen  to  challenge  the  common

judgment rendered in number of other writ petitions.   

58. The  above  contention  does  not  merit  acceptance.  In  Sri

Gangai Vinayagar Temple, three separate decrees were passed in

OS No.5 of 1978 (a suit for injunction simpliciter); OS No.6 of 1978

(monetary part of the suit claim); and OS No.7 of 1978 (monetary

part of the suit claim and also the issue of ownership).  The tenants

thereon challenged only the decree passed in respect of OS No.6 of

1978;  but  have not  challenged the decree passed in  OS No.5 of

1978 and OS No.7 of 1978.  It  was in that context,  the Supreme

38

Court held that non-challenge to two of the decrees would amount to

res judicata.  In  Sri Gangai Vinayagar Temple, considering the facts

and  circumstances  of  the  case  and  non-challenge  to  the  decree

passed in  OS No.6 of  1978 and OS No.7 of  1978,  the Supreme

Court  took  the  view  that  having  failed  to  file  appeal  against  the

decree in OS No.5 of 1978 and OS No.7 of 1978, the cause of the

tenants-respondents  thereon  was  permanently  sealed  and

foreclosed since res judicata applied against them.

59. It  is  pertinent  to  note  that  in  Sri  Gangai  Vinayagar  Temple,

observing  that  mere  filing  of  a  single  appeal  leads  to  the  entire

dispute becoming sub judice once again, the Supreme Court in para

(27) held as under:-

“27. Procedural  norms,  technicalities and processual  law evolve after

years of empirical  experience, and to ignore them or give them short

shrift  inevitably defeats justice. Where a common judgment has been

delivered in cases in which consolidation orders have specifically been

passed, we think it irresistible that the filing of a single appeal leads to

the entire  dispute becoming sub judice once again. ….” [underlining

added]

60. In  the present  case,  before the High Court,  the contentions

raised were the same and common arguments were advanced.  The

High Court dealt with the batch of writ petitions and disposed all of

them by common judgment.  Since it  is a common judgment with

common reasonings, the present batch of appeals before us would

not result in any inconsistent decree or order as all of them arise out

of the common judgment containing common operative portion of the

judgment.

61. Considering the above contention in the light of the consistent

judicial pronouncements of this Court, the above submission is liable

39

to be rejected. In  M/s Shenoy and Co., Represented by its partner

Bele Srinivasa Rao Street, Bangalore and Others v. Commercial Tax

Officer, Circle II, Bangalore and Others (1985) 2 SCC 512, a number

of writ petitions were allowed by the High Court.  However, the State

chose to file appeal only in one case which came to be allowed by

the Supreme Court in the said case. In that fact situation, this Court

took the view that the decision of this Court was binding on all the

writ petitioners before the High Court even though they were not the

respondents in the appeal before the Supreme Court. In M/s Shenoy

and Co., it was held as under:-

“22. Though a large number of writ petitions were filed challenging the

Act, all those writ petitions were grouped together, heard together and

were  disposed  of  by  the  High  Court  by  a  common  judgment.  No

petitioner advanced any contention peculiar or individual to his petition,

not  common  to  others.  To  be  precise,  the  dispute  in  the  cause  or

controversy between the State and each petitioner had no personal or

individual element in it or anything personal or peculiar to each petitioner.

The challenge to  the constitutional  validity  of  1979 Act  proceeded on

identical grounds common to all petitioners. This challenge was accepted

by  the  High  Court  by  a  common judgment  and  it  was  this  common

judgment that was the subject-matter of appeal before this Court in State

of Karnataka v. Hansa Corporation case  (1980) 4 SCC 697. When the

Supreme Court repelled the challenge and held the Act constitutionally

valid, it in terms disposed of not the appeal in Hansa Corporation case

alone, but petitions in which the High Court issued mandamus on the

non-existent ground that the 1979 Act was constitutionally invalid.  It is,

therefore, idle to contend that the law laid down by this Court  in that

judgment  would  bind  only  the  Hansa  Corporation  and  not  the  other

petitioners  against  whom  the  State  of  Karnataka  had  not  filed  any

appeal. To do so is to ignore the binding nature of a judgment of this

Court under Article 141 of the Constitution.  

………

40

26. …… The judgment of this Court in Hansa Corporation case is binding

on all concerned whether they were parties to the judgment or not. We

would like to make it clear that there is no inconsistency in the finding of

this Court  in  Joginder Singh case  AIR 1963 SC 913  and  Makhanlal

Waza case (1971) 1 SCC 749. The ratio is the same and the appellants

cannot  take advantage of  certain  observations made by this  Court  in

Joginder Singh 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, it was

held as under:-

“7. So  far  as  the  first  question  is  concerned,  Article  141  of  the

Constitution  unequivocally  indicates  that  the  law  declared  by  the

Supreme Court shall be binding on all courts within the territory of India.

The aforesaid Article empowers the Supreme Court to declare the law. It

is, therefore, an essential function of the Court to interpret a legislation.

The statements of the Court on matters other than law like facts may

have no binding force as the facts of two cases may not be similar. But

what is binding is the ratio of the decision and not any finding of facts. It

is the principle found out upon a reading of a judgment as a whole, in the

light of the questions before the Court that forms the ratio and not any

particular word or sentence….. A judgment of the Court has to be read in

the context  of  questions which arose for  consideration in  the case in

which the judgment was delivered…… The law which will  be binding

under Article 141 would, therefore, extend to all observations of points

raised  and  decided  by  the  Court  in  a  given  case……”. [underlining

added]

After  referring  to  the  above  judgments,  the  same  principle  was

reiterated in  Fida Hussain and others v. Moradabad Development

Authority and Another (2011) 12 SCC 615.

63. Before the High Court in several  writ  petitions,  unsuccessful

candidates challenged the revised notification dated 12.10.2014 and

41

also the result dated 21.05.2015 published on 22.05.2015. In all the

writ  petitions, some contentions were raised and the writ  petitions

were disposed of by the common judgment. Thus, the contentious

issues raised by the parties stood determined on the same set of

facts  and  on  the  same  reasonings.  There  is  no  merit  in  the

contention that the judgment passed by this Court would bind only

the parties in Writ-C No.34196 of 2015 and that the other judgments

passed by the High Court would stand and operate as res judicata.

As held in M/s Shenoy and Co. and other judgments, to do so is to

ignore the binding nature of a judgment of this Court under Article

141 of the Constitution of India.

Non-impleading of successful candidates in the writ petition

64. On  behalf  of  the  appellants,  repeated  arguments  were

advanced that the non-impleadment of successful parties will affect

the right  of  the 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 to implead all the successful candidates

in the writ petition and therefore, non-impleadment of the successful

candidates would not  affect the maintainability of  the writ  petition.

The learned Senior counsel appearing for the appellants submitted

that  in  O.  Chakradhar,  the  entire  selection  was  vitiated  due  to

misconduct of the selection and in the present case, there is no such

misconduct, fraud or any such other factor which would vitiate the

entire  selection.   It  was  submitted  that  the  High  Court  itself  has

upheld the result of the written examination while finding fault with

the further selection only because of the change in the number of

vacancies advertised for each category.

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65. When  the  selection  of  successful  candidates  is  challenged,

depending  upon  the  facts  and  circumstances  of  the  case,  the

successful candidates ought to be put on notice about the filing of

writ petition by impleading them by issuance of notice in accordance

with law vide Poonam v. State of Uttar Pradesh and others (2016) 2

SCC 779.  In the present case, we are not inclined to go into this

question  in  view  of  the  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 lawyer to implead the incumbents as

parties who have been selected for the post in question.  Before the

High Court,  Mr. Ajay Kumar, learned counsel representing the UP

Public Service Commission submitted that he would supply at least

names of ten successful candidates along with the details and by the

order of the court, the counsel appearing for the writ petitioners were

directed to serve notice upon those ten candidates.  In such facts

and circumstances, we are not inclined to go into this question as to

impleading/non-impleading  of  all  the  successful  candidates  in  the

writ petition.

66. Re:  Contention – Appointment  letters  not  issued to 906

candidates and plea to exercise power under Article 142 of the

Constitution of India:  After the interview was completed, the UP

Public Service Commission has selected 6599 candidates and the

category-wise  details  of  the  candidates  so  recommended  by  the

Commission are as under:-

Total Vacancies General Scheduled Castes Scheduled Tribes

OBC

6599 2488 1881 + 176 Because of non-availability of ST Candidates + 2057

25 2029

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67. The UP Public Service Commission has withheld the result of

29 candidates.   The recommendation so made by the UP Public

Service Commission was in excess of the permissible percentage of

reservation as per UP Reservation Act, 1994.  In fact, this was one

of the grounds of challenge in the writ petition to assail the select

list.   In  the  counter  filed  by  the  Principal  Secretary,  Personnel,

Government  of  UP,  it  is  stated that  change in  the category-wise

vacancies was further scrutinised in terms of Uttar Pradesh Public

Services (Reservation for Scheduled Castes, Scheduled Tribes and

Other  Backward  Classes)  Act,  1994.   It  was  found  that  a

harmonious construction of its various sections was needed to be

taken.   In  the  counter  affidavit  filed  by  the  Principal  Secretary,

Personnel,  it  is  stated  that  the  total  of  6628  vacancies  was

exceeding the demarcated percentage and the relevant portion of

the said affidavit reads as under:-

“Hence, a further revision in category-wise vacancy position was

made and subject to the orders of the Hon’ble High Court, the total

6628 vacancies have been sub-divided based on the reservation

percentage  as  the  result  which  was  declared  by  UPPSC  was

exceeding the demarcated percentage in the following manner:

Available posts after 2% reduction

General (50%)

Scheduled Castes (21%)

Scheduled Tribes (2%)

OBC (27%)

6628 3316 1391 132 1789

Thereafter, the application of horizontal reservation for dependents

of  Freedom  Fighters,  Ex-Servicemen,  Disabled  persons  and

Women was proposed as follows:

Dependent of Freedom Fighters

Women Ex-Servicemen Disabled Persons

132 1325 331 252

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68. Writ Petition No.62112/2015 was filed by few of the successful

candidates for issuance of appointment letter and the High Court

vide its order dated 15.12.2015 directed the official respondents to

issue appointment order.  The High Court further clarified that any

such appointment made as well as the select list shall abide by any

order which may be passed by the Division Bench.  Pursuant to the

aforesaid  order,  the  Chief  Secretary,  Government  of  UP  vide its

letter No.1161/12-4-15-1729/2012 dated 22.12.2015 gave directions

to the Department that appointment orders be issued to the selected

candidates  and  that  the  appointment  should  abide  by  the  final

decision of  the court.   Accordingly,  the appointment  orders  were

issued to the selected candidates on 30.01.2016 as under:-

Position Unreserved Scheduled Castes

Scheduled Tribes

OBC Total

Appointment order issued by Agriculture

Department 2478 1385 22 1784 5669

Documents withheld by UPPSC

10 06 03 05 24

Total 2488 1391 25 1789 5693 Number of candidates whose appointment

letter were not issued --- 490 176 240 906

The appointments were made subject  to the outcome of  the writ

petition.  Thus, total of 5669 candidates were issued appointment

orders; the appointment orders were withheld for 24 candidates as

the documents were withheld by UP Public Service Commission.

69. Mr.  Mehul  M.  Gupta,  learned  counsel  submitted  that  even

though  UP Public  Service  Commission  has  recommended  6599

candidates on the basis of the vacancies available, 906 candidates

were left out and were not issued appointment orders and prayed

for direction that the 906 candidates be issued appointment orders.

45

It is pertinent to note that these 906 candidates were ranked lower

in the merit list than the last selected candidate in their respective

category under the reservation limit as identified by the Personnel

Department, therefore appointment orders were not issued to them.

This cannot be said to be arbitrariness or discrimination as selection

of candidates was on the basis of the merit list.  Further, the revised

requisition dated 20.08.2014, on the basis of which the impugned

office  memorandum  was  issued  itself  was  a  case  of  excessive

requisition, that is, beyond the permissible limits set out by the UP

Reservation Act, 1994.  As a result of this excessive requisition, 906

extra  candidates recommended could  not  be issued appointment

orders after the revision.   

70. As  pointed  out  earlier,  the  revised  requisition  dated

20.08.2014 and the revised notification of  the UP Public  Service

Commission  itself  were  in  excess  of  the  permissible  limits  of

reservation  as  per  UP Reservation  Act,  1994.   We cannot  pass

direction to accommodate the surplus candidates as that would be

in excess of the permissible limit as prescribed by the Act and would

be in violation of prescribed limits of reservation as per the statutory

provisions of UP Reservation Act, 1994.  In exercise of power under

Article 142 of the Constitution of India, if we are to issue direction to

appoint  906  candidates,  it  will  be  crossing  the  limits  of  50%

reservation which would be violation of the constitutional provisions

and  the  UP  Reservation  Act,  1994.  Even  assuming  that  the

respondent  State  was  not  diligent  in  carrying  out  the  proper

quantifiable data of existing working strength in different categories

and ascertaining the vacancies position under different categories, it

46

needs no reiteration that a wrong cannot be corrected by committing

another wrong.

71. It is fairly well-settled that the selected candidates do not have

any indefeasible right to be appointed. As held in State of Bihar and

Others  v.  Amrendra  Kumar  Mishra  (2006)  12  SCC  561,  merely

because the names of candidates were included in the provisional

select  list,  they  do  not  acquire  any  indefeasible  right  to  be

appointed.  Merely  because  UP  Public  Service  Commission  has

recommended the names of 906 candidates, they do not acquire

any indefeasible right for being appointed.

72. In the counter affidavit filed by the State of U.P., it is stated

that the candidates who were selected but not issued appointment

letter filed a Writ Petition No.6198 of 2016 and the High Court vide

order dated 02.03.2016 has directed the State to issue appointment

letter  in  favour  of  the  petitioners  thereon.  On  request  from  the

Agricultural Department, the Government after taking the opinion of

Chief  Standing  Counsel  has  filed  the  Special  Appeal  before  the

Division Bench challenging the order dated 02.03.2016. The said

Special Appeal was tagged with the Writ-C No.34196 of 2015. Since

in Writ-C No.34196 of 2015, the High Court quashed the revised

requisition dated 12.10.2014 and the result and quashed the entire

selection  process  subsequent  to  the  declaration  of  the  written

examination,  consequently  the  Special  Appeal  came  to  be

dismissed.

73. So far as the present vacant position in the counter affidavit

filed by the State, it is stated that there are total vacancies of 4838

and the next selection process for selecting 2050 candidates has

47

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 currently has a total

present vacancy of 4838, and has accordingly sent a requisition letter to

the  Subordinate  Services  Selection  Commission  for  selecting  2059

candidates.  So,  effectively  as  of  today 2779 vacancies  have still  not

been  requisitioned  keeping  in  mind  959  (906+53)  posts  under  the

consideration on which appointment order were not issued.  

A break-up of the current requisition of above mentioned 2059 vacancies

is as follows:

No.  of  vacancies requisitioned

General SC/ST OBC

2059 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 the

appellants  has  prayed  that  power  under  Article  142  of  the

Constitution  of  India  be  exercised  for  extending  the  benefit  of  a

beneficial provision to overcome injustice caused to 906 candidates

who were not issued the appointment orders. It was submitted that

the technical  flaw in the revised requisition was in excess of  the

prescribed limit  of  reservation being in  excess of  the permissible

limits under the UP Reservation Act,  1994 and the same can be

rectified by exercising power under Article 142 of the Constitution of

India.  Learned  counsel  further  submitted  that  906  candidates  in

three different categories i.e. SC, ST and OBCs have successfully

completed  the  written  examination  and  the  interview  and  these

successful candidates have nothing to do with these technical flaws

and therefore, prayed that in order to do complete justice, the power

48

under  Article  142  of  the  Constitution  of  India  be  exercised.  In

support  of  his contention,  Mr.  Mehul Gupta,  learned counsel has

placed  reliance  upon Union  of  India  and  Others  v.  Permanand

Singh  1999  Supreme  Court  Cases  (L&S)  625 and  D.M.

Premkumari  v.  Divisional  Commissioner,  Mysore  Division  and

Others (2009) 12 SCC 267.

75. Pointing  out  that  even  presently,  there  are  2779 vacancies

and that 906 vacancies are kept apart, Mr. Mehul Gupta, learned

counsel  appearing  for  906  candidates  has  submitted  that  906

candidates  can  be  accommodated  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 which are to be filled

up by a fresh advertisement and by participation of all the eligible

candidates  including  the  906  candidates  and  other  unsuccessful

candidates.  2779  vacancies  existing  as  on  date,  which  are  the

vacancies  as  on  date  i.e.  in  2019  cannot  be  filled  up  by  the

candidates who got selected pursuant to the advertisement in 2013-

2014.

76. Article  142 of  the Constitution of  India  confers  wide power

upon the Supreme Court to do complete justice between the parties.

Though the powers conferred on the Supreme Court by Article 142

are  very  wide,  the  same cannot  be  exercised  to  pass  an  order

inconsistent with express statutory provisions of substantive law. In

Ramji  Veerji  Patel  and Others v.  Revenue Divisional  Officer  and

Others (2011) 10 SCC 643, the Supreme Court held that the power

under Article 142 of the Constitution of India is to be exercised very

carefully  and  sparingly.  The  power  under  Article  142  of  the

49

Constitution of India can be exercised so as to do complete justice

between  the  parties.  However,  as  held  in  Supreme  Court  Bar

Association v. Union of India and Another (1998) 4 SCC 409, though

the  power  under  Article  142  of  the  Constitution  are  plenary  in

nature, the same cannot be construed to mean that the power can

be used to supplant the substantive law applicable to the case. In

the case in hand, as discussed earlier, as per the provisions of Uttar

Pradesh  Public  Services  (Reservation  for  Scheduled  Castes,

Scheduled Tribes and Other Backward Classes) Act, 1994, specific

percentages  of  vacancies  have  been  reserved  for  different

categories viz.,               (a) Scheduled Castes – 21% (b) Scheduled

Tribes – 2% and                 (c) OBC – 27%.  In any recruitment, this

statutory permissible limit of reservation not exceeding 50% has to

be maintained. The power under Article 142 of the Constitution of

India cannot be exercised to supplant the statutory provision under

the UP Reservation Act,  1994.  In  our view,  in exercise of  power

under Article 142 of the Constitution of India, no direction can be

issued to the State of UP to issue appointment orders to the 906

candidates.  

77. Summary of Conclusion:-

(i) The Office Memorandum dated 12.10.2014 issued by the

UP  Public  Service  Commission  revising  the  number  of

vacancies  is  based  upon  the  revised  requisition  of  the

Government dated 20.08.2014.  The revised requisition of

the Government dated 20.08.2014 was only to rectify the

wrongful calculation of the number of vacancies in different

categories and to comply with the requisite percentage of

quota  of  reservation  in  different  categories  as  per  Uttar

Pradesh  Public  Services  (Reservation  for  Scheduled

50

Castes,  Scheduled  Tribes  and Other  Backward  Classes)

Act, 1994;

(ii) In  view  of  Rule  15  and  Rule  6  of  UP  Subordinate

Agriculture  Services  Rules,  1993  (Agriculture  Service

Rules, 1993), the Recruitment Authority is empowered to

rectify  the  wrongful  calculation  and  make  a  revised

requisition of  number of  vacancies in different categories

which  is  in  accordance  with  the  provisions  of  UP

Reservation Act, 1994 and Agriculture Service Rules, 1993;

(iii) Absorption of  diploma holders were required to  be done

only against the “General quota”.  The High Court was not

right in saying that the diploma holders ought not to have

been  absorbed  against  the  “General  category”  so  as  to

alter the advertised number of posts against the “General

category”;

(iv) Revising the number of vacancies in different categories to

satisfy the statutory requirement of reservation quota as per

UP Reservation Act,  1994 and this  would not  amount  to

changing the rules of the game after the commencement of

the selection process;

(v) Having participated in the interview and when they failed in

the  final  selection,  it  is  not  open  to  the  private

respondents/intervenors to turn around and challenge the

51

revised notification dated 12.10.2014 and the final  select

list dated 21.05.2015;

(vi) The filling up of the unfilled horizontal reservation by the

candidates  from  the  respective  vertical  reservation  is  in

accordance  with  the  policy  of  the  government  and  the

same cannot 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, Circle II,

Bangalore and Others (1985) 2 SCC 512 and Fida Hussain

and  others  v.  Moradabad  Development  Authority  and

Another (2011)  12  SCC  615  and  other  judgments,

challenging the common judgment only in WP-C No.34196

of 2015 and non-challenge to the other writ petitions, will

not amount to res judicata;

(viii) The  906  candidates  were  not  issued  the  appointment

orders  in  order  to  keep  the  appointment  within  the

permissible  percentage  of  reservation  as  per UP

Reservation Act, 1994.  The power under Article 142 of the

Constitution of India cannot be exercised to issue direction

to the first respondent-State to issue appointment orders to

906 candidates.

78. In  the  result,  the  common  impugned  judgment  dated

10.02.2017 of the High Court in WP(C) No.34196 of 2015 and batch

of writ  petitions is set aside and these appeals are allowed. The

private respondents/intervenors and 906 candidates who were not

issued appointment orders and those who filed writ petitions before

the High Court shall be granted age relaxation as one-time measure

to participate in the upcoming recruitment. Age relaxation is strictly a

52

one-time  measure.  Consequently,  all  the  intervenors/impleading

applications stand dismissed.

………………………..J.                                                                              [R. BANUMATHI]

………………………..J.                                                                          [A.S. BOPANNA]

New Delhi; September 30, 2019

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