10% EWS reservation applies only to current vacancies, excluding backlog vacancies treated as a separate class.

The applicants, belonging to the Economically Weaker Section (EWS) category, applied for the post of ‘Fire Operator’ (Post Code 18/19) under the Delhi Fire Service

The recruitment advertisement dated 24.09.2019 notified 706 total vacancies, out of which only 21 posts were reserved for the EWS category

The applicants, having cleared the written and physical tests, challenged the allocation, contending that per the 10% EWS reservation policy, approximately 70-71 posts should have been reserved

The respondents contended that the 706 vacancies included 495 backlog vacancies for SC/ST/OBC categories, which must be treated as a separate class under the Constitution. Consequently, they calculated the 10% EWS reservation only on the 211 "current" vacancies

1. Whether the respondents correctly implemented the 10% EWS reservation policy by earmarking 21 posts instead of 70-71 posts for Post Code 18/19

2. Whether the applicants are barred from challenging the advertisement after participating in the selection process without protest

The Tribunal relied on the 103rd Constitutional Amendment, which inserted Articles 15(6) and 16(6) to enable up to 10% reservation for EWS in addition to existing reservations

It emphasized Article 16(4B) of the Constitution, which mandates that backlog vacancies be treated as a distinct class and excluded from the ceiling of reservation for the current year

This principle was upheld by the Supreme Court in M. Nagraj v. Union of India (2006) 8 SCC 212

the Tribunal applied the doctrine of estoppel from Om Prakash Shukla v. Akhilesh Kumar Shukla (1986), which holds that candidates who participate in a selection process without protest cannot challenge it after becoming unsuccessful or at the final stage

The Tribunal found that of the 706 total vacancies, approximately two-thirds (492-495) were backlog vacancies for SC, ST, and OBC categories

Relying on Article 16(4B) and the M. Nagraj precedent, the Tribunal reasoned that backlog vacancies cannot be clubbed with current vacancies for the purpose of calculating the EWS quota, as they represent a separate class of "unfilled vacancies" from previous years

By deducting the 495 backlog posts from the 706 total, only 211 current vacancies remained. The allocation of 21 posts (10% of 211) was therefore mathematically and legally sound

The Tribunal distinguished the applicants' reliance on Gaurav Sharma v. GNCTD, noting that in that case, the department had admitted to a notification error, whereas here, the respondents provided a legally valid roster-based justification

the Tribunal noted that the applicants challenged the advertisement only at the "fag end" of the process, which is impermissible after voluntary participation

The direct answer to the issue was that backlog vacancies under Article 16(4B) must be excluded when determining the base for EWS reservation

The Tribunal refused to grant any relief or direct the creation of additional EWS posts, confirming that the requirement of the EWS reservation policy stood fully satisfied

No orders were made as to costs