Supreme Court of India
Anupal Singh . vs The State Of Uttar Pradesh Through … on 30 September, 2019Author: R. Banumathi Bench: R. Banumathi, A.S. Bopanna 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 JUDGMENT

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
Signature Not Verified the Uttar Pradesh Public Service Commission on the basis of
Digitally signed by quantifiable data and cadre strength as well as actual persons
MAHABIR SINGH
Date: 2019.09.30
17:21:30 IST
Reason:
1
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 Unreserved SC ST OBC
dt.
22.10.2013 3616 2211 235 566
Total vacancies: 6628 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 2
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- Unreserved SC ST OBC 4-14-1992/2014 dt. 20.08.2014 2030 2515 1882 201 Total vacancies: 6628 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 3
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%.
4
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 5
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.
6
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.
7
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.
8
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.
9
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 10
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 11
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 12
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 13 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 14
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 50% 21% 2% 27%
sanctioned General Category Scheduled Caste Scheduled Tribe Other
posts Backward Classes
10559 5280 2217 211 2851
Employees
2713 297 6 780
working – 3796
Vacant – 6763 2567 1920 205 2071
After 2%
deduction as per 2515 1882 201 2030
Government
Order – 6628 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- Unreserved SC ST OBC
4-14-1992/2014 dt.
20.08.2014 2515 1882 201
Total vacancies: 6628
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 50% 21% 2% 27%
sanctioned posts General Category Scheduled Caste Scheduled Tribe Other Backward Classes
10559 5280 2217 211 2851 Employees 2713 297 6 780
working – 3796 (25.69%) (2.81%) (0.05%) (7.38%) Vacant – 6763 2567 1920 205 2071 (24.31%) (18.18%) (1.94%) (19.61%) 22
After 2%
deduction as per 2515 1882 201 2030
Government (23.81%) (17.82%) (1.90%) (19.22%)
Order – 6628
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. October – 27, 28, 29, 30 Reservation November – 05, 07, 10, 11, 12, 2515 posts – Non-reserved 13, 14, 15, 17, 18, 19, 20, 21, 1882 posts – SC 22, 25, 26, 27, 28, 29 201 posts – ST December – 01, 02, 03, 04, 05, 2030 posts – OBC 06, 08, 09, 10, 11, 12, 15, 16, 17, 18, 19, 20, 22, 23, 24, 2014 Pay Scale Rs.5200-20200/- Grade Pay Rs.2400/- Before 10.00 a.m. Advertisement No.A-5/E-1/2013 Last Date: 21.11.2013 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.
42
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 OBC Tribes 6599 2488 1881 + 176 25 2029 Because of non-availability of ST Candidates + 2057 43
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 General Scheduled Scheduled OBC after 2% reduction (50%) Castes Tribes (27%) (21%) (2%) 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 Women Ex-Servicemen Disabled Freedom Fighters Persons
132 1325 331 252 44
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 Scheduled OBC Total Castes Tribes Appointment order issued by Agriculture 2478 1385 22 1784 5669 Department Documents withheld by 10 06 03 05 24 UPPSC Total 2488 1391 25 1789 5693 Number of candidates whose appointment — 490 176 240 906 letter were not issued 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 General SC/ST OBC requisitioned
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 53

News Reporter

Leave a Reply

Your email address will not be published.

%d bloggers like this: