Bhoopendra Kumar vs State of U.P. and 2 others

A.F.R.
Reserved On:17.08.2026
Delivered On:03.09.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - A No. - 1422 of 2020
Bhoopendra Kumar
.....Petitioner(s)
Versus
State of U.P. and 2 others
.....Respondent(s)
Along with :
1. Writ - A No. 1122 of 2020:
Shailendra Kumar Singh
Versus
State of U.P. and 2 others
2. Writ - A No. 1125 of 2020:
Manmohan Shahi
Versus
State of U.P. and 2 others
Counsel for Petitioner(s) : Kamlesh Kumar Tiwari, Sanjay Kumar
Dubey
Counsel for Respondent(s) : Suresh Kumar Maurya, Bhupendra
Kumar Yadav, C.S.C., Harsh Vardhan
Gupta, Suresh Kumar Maurya
Court No. - 52
HON'BLE MRS. MANJU RANI CHAUHAN, J.
Heard learned counsel for the petitioner, Mr. Suresh Kumar Maurya and
Mr. Harshwardhan Gupta, learned counsel for respondents as well as
learned Standing Counsel for the State.
The instant writ petition has been filed with the prayer to quash the
impugned order dated 06.12.2019 passed by the Secretary, U.P. Basic
Shiksha Parishad, Prayagraj (respondent no.2) and order dated 07.12.2019
passed by District Basic Education Officer, Firozabad (respondent no.3)
and a further prayer to direct the respondents competent to consider filing
the unfilled 4 sets at Firozabad belonging to vertical reservation for

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2
Scheduled Tribes as per the prescriptions made under the existing Sub-
Section (3) to the Section 3 of the Uttar Pradesh Public Service
(Reservation of Schedules Castes, Scheduled Tribes and Other Backward
Classes) Act 1994 (amended from time to time) by considering placing
the petitioner as per his merits.
Learned counsel for the petitioner submits that the petitioner, being duly
eligible and qualified for appointment to the post of Assistant Teacher in
Primary Schools (Junior Basic Schools) run and managed by the Uttar
Pradesh Basic Shiksha Parishad, applied pursuant to the advertisement
dated 18.12.2015, whereby 15,000 posts of Assistant Teachers were
advertised for appointment throughout the State. In terms of the
Government Order/Advertisement dated 18.12.2015, 200 posts of
Assistant Teachers were sanctioned for various Junior Basic Schools in
District Firozabad.
It is submitted that, pursuant to the aforesaid recruitment process, eligible
candidates were called for counselling, which was conducted throughout
the State and in District Firozabad also. The counselling for appointment
to the post of Assistant Teacher was scheduled and held on 24.06.2016.
The petitioner, belonging to the Scheduled Caste category, participated in
the first counselling but could not secure appointment on account of his
position in the merit list.
Learned counsel further submits that, subsequently, the petitioner moved
an application dated 28.12.2018 under the Right to Information Act, 2005
seeking information with regard to the counselling and selection process
undertaken in District Firozabad. In response thereto, a communication
dated 16.02.2019 was furnished to the petitioner, wherein it was disclosed
that, against the 200 posts allotted to District Firozabad under the
recruitment for 15,000 posts of Assistant Teachers, four posts reserved for
candidates belonging to the Scheduled Tribe category had remained
unfilled on account of non-availability of eligible candidates belonging to
the said category.
It is thus contended that, out of the total 200 vacancies earmarked for
District Firozabad, four vacancies relatable to the Scheduled Tribe
category continued to remain vacant. Learned counsel for the petitioner

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3
submits that the last selected candidate belonging to the Scheduled Caste
category had secured 69.58 quality-point marks, whereas the petitioner
had secured 66.78 quality-point marks and although, he consequently
remained below the Scheduled Caste cut-off, he would fall within the
zone of consideration if the four unfilled Scheduled Tribe vacancies were
required to be filled in accordance with the statutory mechanism
governing the treatment of unfilled reserved vacancies.
It is, therefore, urged that the petitioner ought not to be deprived of
consideration merely because the candidates belonging to the Scheduled
Tribe category were unavailable. Learned counsel for the petitioner
further contends that the statutory scheme contained in the Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994, as amended from time to time,
contemplates a course of action in respect of vacancies which remain
unfilled for want of suitable candidates of the concerned reserved
category. The petitioner, being a duly qualified candidate belonging to the
Scheduled Caste category and having participated in the selection process,
is consequently entitled to be considered against such unfilled vacancies
in accordance with law and on the basis of his merit.
Learned counsel for the petitioner also submits that the impugned orders
dated 6.12.2019 and 7.12.2019 have been passed without properly
appreciating the statutory mandate governing unfilled reserved vacancies
and, therefore, suffers from manifest illegality and arbitrariness. Learned
counsel for the petitioner accordingly, seeks quashing of the said orders
and a consequential direction to the respondents to consider his
candidature against the four unfilled vacancies, strictly in accordance with
the applicable statutory provisions and the merit of the candidates.
Section 3(3) of the Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act,
1994 (hereinafter referred to as Act of 1994) provides as follows-
“ (3) If in the third such recruitment referred to in sub-section (2) suitable candidates
belonging to the Scheduled Tribes are not available to fill the vacancy reserved for
them, such vacancy shall be filled by persons belonging to the Scheduled Castes.”

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Accordingly, four vacancies earmarked for the Scheduled Tribe category
remained unfilled and were not filled by the Zila Basic Shiksha Adhikari,
Firozabad, despite specific instructions issued by the Secretary, Uttar
Pradesh Basic Shiksha Parishad, vide letter dated 06.02.2017, whereby all
the District Basic Education Officers in the State were directed to take
appropriate steps for filling up the unfilled vacancies belonging to the
Scheduled Tribe category.
Learned counsel for the petitioner submits that, subsequently, the
Secretary, Uttar Pradesh Basic Shiksha Parishad, further issued a letter
dated 23.03.2017, directing that the ongoing selection process be kept in
abeyance. It is submitted that, in the meantime, Writ Petition No. 4812
(SS) of 2017 (Arti Sahu And 80 Ors. vs. State of U.P. Thru. Prin. Deptt.
of Basic Edu. Govt. of U.P. and Ors) was instituted before the Lucknow
Bench of this Court, wherein, by order dated 10.03.2017, the selection
process was stayed till 21.03.2017. Consequently, the Secretary, Uttar
Pradesh Basic Shiksha Parishad, issued the aforesaid circular dated
20.03.2017 staying implementation of the selection process initiated
pursuant to the earlier letter dated 06.02.2017.
Learned counsel submits that, significantly, after 21.03.2017, the interim
order dated 10.03.2017 was not extended. Nevertheless, the authorities
did not resume the process for filling up the vacancies earmarked for the
Scheduled Tribe category and the four vacancies continued to remain
unfilled.
It is further submitted that subsequently Writ-A No. 28381 of 2017 (Anil
Kumar Sonkar and others versus State of U.P. and others), was instituted
before this Court at Allahabad. The said writ petition was disposed of by
order dated 10.07.2017 with a direction to the concerned District Basic
Education Officer to take appropriate steps for filling up the vacancies
within a period of two months.
Learned counsel for the petitioner further submits that Writ Petition No.
52705 of 2017(Ramesh Kumar vs. State of U.P. and 3 Others), was also
finally disposed of by order dated 28.11.2017, whereby the District Basic
Education Officer, Gorakhpur, was directed to conduct counselling by
fixing a fresh date for filling up the vacancies reserved for the Scheduled

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Tribe category from the eligible candidates belonging to Scheduled Caste
category, preferably within a period of two months.
It is contended that, despite the aforesaid judicial pronouncements and
repeated administrative directions, the four vacancies reserved for the
Scheduled Tribe category remained unfilled. The petitioner, therefore,
submitted a representation dated 02.03.2019 before the District Basic
Education Officer, Firozabad, requesting that the vacancies be filled, in
accordance with the applicable reservation provisions and the earlier
directions issued by this Court. The said representation was sent through
registered post.
Learned counsel for the petitioner further submits that, in the meantime,
certain similarly situated candidates instituted Writ Petition No. 9842 of
2018 (Krishna Gopal and three others versus State of U.P. and others),
which was disposed of by order dated 12.04.2018 with a direction to the
concerned District Basic Education Officer to consider and decide the
matter in accordance with law. Pursuant thereto, the competent authority
initiated further proceedings and issued a communication in the matter.
The petitioner contend that, despite the consistent administrative
directions and the repeated orders passed by this Court for filling up the
reserved vacancies, the authorities have failed to take the matter to its
logical conclusion, resulting in continued deprivation of the petitioner's
opportunity of consideration against the four vacancies earmarked for the
Scheduled Tribe category.
Similarly situated candidates belonging to the Scheduled Caste category
have been adjusted and given appointment against unfilled vacancies of
the Scheduled Tribe in district Hathras. However, the petitioner has not
been accommodated in view of the relevant provision of the Act of 1994.
When no action was taken, the petitioner filed Writ Petition No. 9986 of
2019 (Bhoopendra Kumar v. State of U.P. and others), before this
Hon’ble Court. The said writ petition was disposed of by order dated
24.07.2019, directing the concerned District Basic Education Officer to
take a decision within six weeks, in accordance with the provisions of the
Act of 1994 and any applicable government orders. In compliance
thereof, respondent no. 2, the Secretary, U.P. Basic Shiksha Parishad,

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Prayagraj, passed an order dated 06.12.2019 rejecting the petitioner’s
claim and further directed respondent no. 3 to take an appropriate decision
in terms of the said directions. Pursuant thereto, the District Basic
Education Officer passed an order dated 07.12.2019, which is under
challenge in the present petition.
Learned counsel for the petitioner submits that the claim of the petitioner
has not been examined in the light of Section 3 of the Uttar Pradesh
Public Services (Reservation for Scheduled Castes, Scheduled Tribes and
Other Backward Classes) Act, 1994 (hereinafter referred to as the “Act of
1994”). The impugned orders have, therefore, been passed without
adverting to the statutory provision governing the field and without
undertaking any meaningful consideration of the petitioner’s claim.
It is contended that the petitioner has been deprived of his legitimate right
of consideration under the reservation framework contemplated by the
Act of 1994. Learned counsel for the petitioner submits that, where
suitable candidates belonging to the Scheduled Tribe category are not
available, the statutory scheme permits consideration of candidates
belonging to the Scheduled Caste category against such reserved
vacancies, subject to the conditions prescribed by law. Consequently, the
mere non-availability of Scheduled Tribe candidates could not have been
treated as an insurmountable impediment to filling the posts in accordance
with the statutory mechanism.
Learned counsel for the petitioner further contended that the four
vacancies earmarked for the Scheduled Tribe category have admittedly
remained unfilled for a considerable period, despite repeated
administrative instructions and judicial directions requiring the authorities
to undertake the process of filling such vacancies. The continued retention
of these vacancies, while candidates otherwise eligible and falling within
the permissible zone of consideration remain available, defeats the very
object and purpose of the reservation legislation.
It is, therefore, submitted that the impugned orders dated 06.12.2019 and
07.12.2019 suffer from non-application of mind, inasmuch as the
competent authorities have failed to examine the petitioner’s candidature
with reference to Section 3 of the Act of 1994 and the applicable

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reservation provisions. Learned counsel for the petitioner accordingly
prays that the impugned orders be set aside and a direction be issued to
the District Basic Education Officer, Firozabad, to consider the
candidature of the petitioner against the vacant posts reserved for the
Scheduled Tribe category, strictly in accordance with the Act of 1994, the
applicable Government Orders and the petitioner’s inter se merit and
eligibility.
Learned counsel appearing for the respondents (District Basic Education
Officer), on the other hand, submits that pursuant to the advertisement
issued in the year 2015 for filling up 15,000 posts of Assistant Teachers,
200 posts were allocated to District Hathras, out of which 42 posts were
earmarked for candidates belonging to the Scheduled Caste category. All
the said 42 posts had already been filled, and consequently, no vacancy
earmarked for the Scheduled Caste category was available for being
filled. It is further submitted that there was neither any Government Order
nor any departmental direction authorising the diversion or utilisation of
vacancies earmarked for the Scheduled Caste category for making
appointments against posts reserved for the Scheduled Tribe category. As
regards the appointments in District Hathras, learned counsel submits that
the action of the authorities was pursuant to the order dated 15.10.2018
passed by the Secretary, Basic Education Board, whereby the District
Basic Education Officer, Hathras, was directed to take a decision in
accordance with the order passed by this Court in Writ Petition No. 9842
of 2018 (Krishna Gopal and three others versus State of U.P. and others)
and keeping in view the provisions of the Uttar Pradesh Public Services
(Reservation for Scheduled Castes, Scheduled Tribes and Other
Backward Classes) Act, 1994. It is emphatically submitted that the
Secretary, Basic Education Board, had not directed the District Basic
Education Officer to make any appointment, but had merely required him
to take an appropriate decision, in accordance with law. It is, therefore,
contended that the petitioner cannot claim parity with the petitioners in
Writ Petition No. 9842 of 2018 (Krishna Gopal and three others versus
State of U.P. and others), as the factual and legal circumstances governing
the two cases are materially different.
The learned counsel for the respondents further submits that the petitioner

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cannot claim appointment on the strength of a merit/select list which has
already exhausted its statutory validity. Reliance is placed upon Rule 17-
A(2) of the Uttar Pradesh Basic Education (Teachers) Service Rules,
1981, which contemplates that the Selection Committee shall consider the
candidates for selection on the basis of the list referred to in sub-rule (6)
of Rule 14 or sub-rule (2) of Rule 15, as the case may be, and shall
prepare a list of selected candidates in the order in which their names
appear in the said list. Where two or more candidates secure equal quality
points, the candidate senior in age is to be placed higher in the select list,
which is thereafter required to be forwarded to the appointing authority. It
is further submitted that, under sub-rule (2) of Rule 17-A, the list so
prepared remains valid only for a period of one year from the date of its
preparation. Consequently, upon expiry of the statutory period of validity,
no vested or enforceable right accrues to a candidate to seek appointment
on the basis of such list. The petitioner, therefore, cannot seek a direction
for appointment from a select list whose statutory life has already expired
and which stands exhausted by operation of law. It is accordingly
contended that the relief claimed by the petitioner is legally untenable and
the writ petition is liable to be dismissed.
Heard learned counsel for the parties and perused the records.
Before coming to the merits of the case as per the facts of the present
matter, it would be appropriate to reproduce certain provisions which
have relevance in the matter and they are as follows:
Section 3(3) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes,
“
Scheduled Tribes and Other Backward Classes) Act, 1994 as originally enacted-
“ (3) If, in the third such recruitment referred to in sub-section (2), suitable
candidates belonging to the Scheduled Tribes are not available to fill the
vacancy reserved for them, such vacancy shall be filled by persons belonging
to the Scheduled Castes.”
Thus, the original provision specifically dealt with a vacancy reserved for Scheduled
Tribes which remained unfilled even after the third special recruitment under Section
3(2), and permitted such vacancy to be filled by a candidate belonging to the
Scheduled Castes.”

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Section 3(3) of the Uttar Pradesh Public Services (Reservation for
Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act,
1994 after the amendment states that the provision was subsequently
altered by the U.P. Public Services (Reservation for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2001,
and the relevant scheme was thereafter restored/modified by the 2002
amendment. The 2001 amendment had substituted Section 3(3) to provide
a category-wise mechanism for filling vacancies where suitable
candidates of the concerned Scheduled Caste category or Scheduled Tribe
were unavailable.
In the Rule 17-A(2) of the U.P. Basic Education (Teachers) Service
Rules, 1981, the provision is:
“ (2) The list prepared under sub-rule (1) shall remain valid for one year from
the date of its preparation.”
The legal position with respect to filling an unfilled ST vacancy by a SC
candidate has been dealt in-
1. B.N. Tewari v. Union of India , reported in AIR 1965 SC 1430
The Constitution Bench, while considering the reservation/carry-forward
scheme, specifically noticed the 1952 Government instruction that:
“ where a suitable Scheduled Caste candidate was not available, a Scheduled
Tribe candidate could be appointed, and vice versa, subject to adjustment in
subsequent points of the roster.”
Most importantly, the Supreme Court expressly observed that the decision
in T. Devadasan v. Union of India , reported in AIR 1964 SC 179 did
not affect “the filling up of scheduled tribes vacancies by a member of
scheduled castes where sufficient number of scheduled tribes are not
available in a particular year or vice versa.”
Thus, B.N. Tewari (supra) is a direct historical authority recognising SC-
ST interchange, subject to roster adjustment.
Thus the principal issue in B.N. Tewari (supra) was not the validity of

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10
SC-ST interchange as such; it concerned the carry forward rule and the
effect of its subsequent invalidation in T. Devadasan (supra) . The Court
held that the earlier 1952 carry-forward rule did not revive after the 1955
rule had replaced it.
Therefore, should not be cited as a blanket
B.N. Tewari (supra)
proposition that every unfilled ST vacancy can always be given to an SC
candidate. Its relevance to the present issue is the Court’s express
recognition of the then-existing interchange mechanism.
In the State of Uttar Pradesh, the decisive provision is Section 3(3) of the
U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes
and Other Backward Classes) Act, 1994, as substituted by U.P. Act No.
45 of 2007.
The present statutory scheme recognises interchange between SC and ST
where a suitable candidate of the concerned category is unavailable,
subject to the statutory conditions and subsequent adjustment in the
roster.
Accordingly:
ST vacancy
→ suitable SC candidate = legally
permissible under Section 3(3), subject to the
statutory mechanism.
It is not an automatic de-reservation of the ST vacancy. The vacancy does
not automatically become “General” and the distinction is fundamental, as
an unfilled ST vacancy remains a reserved vacancy and has to be dealt
with under the applicable carry forward/special recruitment/interchange
mechanism.
The Supreme Court’s reservation jurisprudence, including B.N. Tewari
(supra), demonstrates that the question of an unfilled reserved vacancy
cannot be answered merely by saying that “no ST candidate was
available.”
The constitutional position has subsequently undergone substantial
change after 1964. The introduction of Article 16(4B) constitutionally

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recognised the concept of carried-forward reserved vacancies/backlog
vacancies as a separate class, therefore, the modern legal framework
cannot be determined solely from the pre-1970 reservation cases. The
present statutory provisions and subsequent constitutional amendments
must be applied taking into account the position under Central
Government Rules.
Although B.N. Tewari (supra) recorded the 1952 Central Government
rule permitting SC–ST interchange, the present Central Government post-
based reservation regime does not permit such inter se exchange merely
because an ST candidate is unavailable.
The current DoPT framework operates on the post-based roster, with SC
and ST being distinct reservation points/categories.
Therefore the present Central Government position is as follows:
ST reserved post cannot ordinarily be filled by an SC candidate by simply
“
exchanging the ST reservation for SC reservation.
The unfilled ST vacancy is dealt with through the applicable reserved/backlog
vacancy mechanism.”
The issue in question has been dealt by Apex Court in several judgments
which are as follows;
(i) M.R. Balaji v. State of Mysore , reported in AIR 1963 SC 649 -
foundational principles concerning reservation and the permissible extent
of reservation.
(ii) , reported in 179-
T. Devadasan v. Union of India AIR 1964 SC
examined the excessive effect of the carry-forward rule.
(iii) , reported in
B.N. Tewari v. Union of India AIR 1965 SC 1430;
(1965) 2 SCR 421-recognised the then-existing SC–ST interchange
mechanism and clarified the effect of Devadasan on the carry-forward
rule.
(iv) , reported in
Indra Sawhney v. Union of India 1992 Supp (3) SCC

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-foundational Constitution Bench decision on Article 16(4) and
217
reservation.
(v) , reported in
State of U.P. v. Sangam Nath Pandey (2011) 2 SCC 105
-important regarding the U.P. reservation statute, roster and unfilled
reserved vacancies.
(vi) Upendra and 29 Others v. State of U.P and 3 others., Allahabad
, -considers the
High Court Neutral Citation-2018:AHC:207951-DB
U.P. statutory scheme, roster and backlog.
(vii)
Ram Chandra and 12 others v. State of U.P. and 4 others,
Allahabad High Court , Neutral Citation-2019:AHC:108599-DB -
further examines carry-forward/backlog and the statutory reservation
mechanism.
The present legal position in State of Uttar Pradesh is as follows:
An ST-reserved vacancy which could not be filled for want of a suitable ST
“
candidate may, subject to the conditions prescribed under Section 3(3) of the U.P. Act,
1994 as amended in 2007, be filled by a suitable SC candidate. Such action constitutes
statutory SC–ST interchange and not de-reservation of the post. The roster and
subsequent adjustment contemplated by the statute must, however, be strictly
maintained.”
The legal position for the Central Government services is different. The
principle recognised in the 1964 B.N. Tewari (supra) case cannot today
be invoked, by itself, to claim that an unfilled ST post may be filled by an
SC candidate. The present post-based Central Government reservation
regime treats SC and ST reservation points separately, and inter se
exchange is not ordinarily permissible.
Considering the rival submissions, the statutory scheme governing
reservation and the material placed on record, this Court is of the
considered view that the controversy has two distinct facets, which cannot
be conflated: first, whether the four vacancies earmarked for the
Scheduled Tribe category could, in the circumstances contemplated by
Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled

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Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, be
utilised for a candidate belonging to the Scheduled Caste category; and
secondly, whether such a candidate, after the expiry of the select list, can
still claim appointment merely because the vacancies had remained
unfilled during the currency of the recruitment process.
So far as the first aspect is concerned, the mere fact that a vacancy was
originally earmarked for the Scheduled Tribe category does not, in itself,
constitute an absolute statutory embargo against its being dealt within the
manner prescribed by Section 3 of the Act of 1994. The reservation
statute contains a complete mechanism for dealing with reserved
vacancies which remain unfilled for want of suitable candidates. The
legislative scheme, however, does not confer upon a candidate belonging
to the Scheduled Caste category an automatic or indefeasible right to
appropriate an unfilled Scheduled Tribe vacancy. The statutory conditions
governing the relevant recruitment, the availability or otherwise of
suitable Scheduled Tribe candidates, the prescribed recruitment process
and the roster are required to be scrupulously observed.
In the present case, it is not in dispute, at least from the material placed
before the Court, that four vacancies earmarked for the Scheduled Tribe
category remained unfilled on account of non-availability of eligible
Scheduled Tribe candidates. The record further discloses that the
Secretary, Uttar Pradesh Basic Shiksha Parishad, had issued
communication dated 06.02.2017 directing the District Basic Education
Officers to take appropriate steps for filling the unfilled Scheduled Tribe
vacancies. The record also indicates that this Court, on more than one
occasion, directed the competent authorities to undertake the process of
filling the vacancies reserved for the Scheduled Tribe category.
It would, therefore, be legally impermissible for the respondents to
proceed on the simplistic premise that an unfilled Scheduled Tribe
vacancy is incapable, in all circumstances, of being dealt with in favour of
a Scheduled Caste candidate. The statutory scheme must first be applied.
Equally, however, the existence of such a statutory possibility does not
translate into a vested right in favour of the petitioner. The petitioner was
required to establish not merely that he belongs to the Scheduled Caste

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category, but also that he was otherwise eligible and suitable, that the
statutory conditions for utilisation of the unfilled Scheduled Tribe
vacancies stood satisfied, and that his claim could legally be considered
within the life of the recruitment process.
This brings the Court to the second and in the facts of the present case,
determinative aspect of the matter. Rule 17-A(2) of the Uttar Pradesh
Basic Education (Teachers) Service Rules, 1981 expressly provides that
the select list prepared by the Selection Committee shall remain valid for
one year from the date of its preparation. The statutory prescription is
unequivocal. The select list is not an inexhaustible reservoir from which
appointments can be drawn at any indefinite point of time. Its life is
circumscribed by the rule itself.
The consequence is of considerable legal significance. Once the statutory
period of validity of the select list expires, a candidate whose name
figures in such list does not retain an enforceable right to claim
appointment merely because some vacancy pertaining to the recruitment
year remains vacant. Inclusion in a select list is not synonymous with
appointment; still less does it confer a perpetual right to appointment
against a vacancy which survives beyond the statutory life of the list. The
Supreme Court has consistently drawn a principled distinction between
the existence of a vacancy and the existence of an enforceable right to
appointment. A vacancy by itself does not confer upon a selected
candidate an indefeasible right to occupy the post.
The position becomes still more compelling where the claim is sought to
be founded upon a reserved vacancy which remained unfilled during the
recruitment process. Reservation is a constitutional and statutory
mechanism for securing adequate representation to the designated classes;
it is not a device for keeping a particular recruitment process artificially
alive beyond the period prescribed by the governing service rules. The
Reservation Act and the Service Rules must therefore operate
harmoniously. Section 3 of the Act of 1994 may regulate the manner in
which an unfilled reserved vacancy is to be dealt with; it cannot, in the
absence of an express statutory provision, enlarge the life of a select list
whose validity has expressly expired under Rule 17-A(2) of U.P. Basic

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Education (Teachers) Service Rules, 1981.
Thus, even assuming that Section 3 of the Act of 1994 permitted
consideration of an eligible Scheduled Caste candidate against an unfilled
Scheduled Tribe vacancy in the circumstances of the recruitment, such
consideration had necessarily to take place within the subsistence of the
recruitment process and the statutory life of the select list. Section 3
cannot be employed retrospectively as a mechanism for reviving an
exhausted select list. Once the list stood extinguished by efflux of the
statutory period, no right could be resurrected merely because four
reserved vacancies continued to remain unfilled.
The record itself demonstrates that the petitioner participated in the
original counselling held on 24.06.2016 but did not secure appointment
on account of his position in the merit list. His subsequent claim was
founded upon information obtained under the Right to Information Act in
February 2019 regarding the continued existence of the four unfilled
Scheduled Tribe vacancies. The chronology is, therefore, crucial. The
petitioner cannot, after the statutory life of the select list has run its
course, seek to convert the continued existence of vacancies into a
continuing right of appointment.
There is yet another dimension which cannot be overlooked. The power
of judicial review is directed against illegality, arbitrariness and failure to
exercise statutory jurisdiction; it is not a source of power to make an
appointment contrary to the governing recruitment rules. Even where the
administrative authority may have failed to act upon an unfilled reserved
vacancy during the appropriate period, the Court cannot, after expiry of
the select list, direct appointment from an exhausted list unless some
independent and enforceable legal right is shown. The Court cannot
extend by judicial fiat the life of a statutory select list which the rule-
making authority has expressly confined to one year.
The fact that similarly situated candidates may have obtained
appointments in another district also does not furnish an independent legal
foundation for the petitioner's claim. The record itself notes the
petitioner's reliance upon appointments said to have been made in District

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Hathras against unfilled Scheduled Tribe vacancies but parity can operate
only where the claimant establishes identity of the governing facts, the
same recruitment process, the same statutory stage and the same
subsisting legal entitlement. An allegedly erroneous benefit granted to
another candidate cannot ordinarily become the source of a mandamus
contrary to the statutory rules.
The Court is, therefore, of the firm view that the two propositions
advanced before it must be carefully distinguished. First, the respondents
cannot contend as an absolute proposition that an unfilled Scheduled
Tribe vacancy can never, under the Reservation Act, be utilised for a
Scheduled Caste candidate; the statutory mechanism contained in Section
3 of the Act of 1994 has to be examined. Second, and more importantly,
that statutory mechanism does not preserve the life of an exhausted select
list, nor does it create a perpetual right in favour of a candidate whose
candidature was not selected within the currency of the list.
Accordingly, in the facts of the present case, although the authorities were
required, during the subsistence of the recruitment process and the select
list, to examine the four unfilled Scheduled Tribe vacancies in the light of
Section 3 of the Act of 1994, their failure to do so cannot, after expiry of
the statutory one-year period of validity of the select list, confer upon the
petitioner an enforceable right to appointment. The four vacancies may
undoubtedly be dealt with by the competent authority in accordance with
the reservation roster and the recruitment rules applicable to any
subsequent recruitment, but they cannot be utilized for conferring an
appointment upon the petitioner from an already extinguished select list.
The challenge to the impugned orders, therefore, fails not because an
Scheduled Tribe vacancy is, in the abstract, incapable of being filled by a
Scheduled Caste candidate, but because the petitioner's asserted right is
sought to be enforced after the statutory life of the recruitment list had
expired. Section 3 of the Act of 1994 cannot be construed as an
instrument for reviving a dead selection process. To hold otherwise would
amount to judicially rewriting Rule 17-A(2) of U.P. Basic Education
(Teachers) Service Rules, 1981, converting a select list expressly limited
to one year into an open-ended source of appointments and thereby

WRIA No. 1422 of 2020
17
introducing an element of uncertainty, arbitrariness and perpetuality into
public recruitment.
For the aforesaid reasons, this Court finds no enforceable right surviving
in favour of the petitioner to claim appointment against the four
Scheduled Tribe vacancies on the strength of the recruitment undertaken
pursuant to the advertisement dated 18.12.2015. The writ petition is,
accordingly, liable to be dismissed, leaving it open to the competent
authority to deal with the unfilled reserved vacancies strictly in
accordance with the Reservation Act, the applicable roster and the
recruitment rules governing any subsequent recruitment.
In view of the above, the writ petition is , accordingly.
dismissed
(Mrs. Manju Rani Chauhan,J.)
September 3, 2026
K.N.
Digitally signed by :-
KALP NATH SINGH
High Court of Judicature at Allahabad