Bhoopendra Kumar vs State Of U.P. & Ors.

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 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 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-

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 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, 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 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 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 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:

The legal position with respect to filling an unfilled ST vacancy by a SC candidate has been dealt in-

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:

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 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, B.N. Tewari (supra) should not be cited as a blanket 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 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:

The issue in question has been dealt by Apex Court in several judgments which are as follows;

M.R. Balaji v. State of Mysore, reported in AIR 1963 SC 649-foundational principles concerning reservation and the permissible extent of reservation.

T. Devadasan v. Union of India, reported in AIR 1964 SC 179-examined the excessive effect of the carry-forward rule.

B.N. Tewari v. Union of India, reported in 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.

Indra Sawhney v. Union of India, reported in 1992 Supp (3) SCC 217-foundational Constitution Bench decision on Article 16(4) and reservation.

State of U.P. v. Sangam Nath Pandey, reported in (2011) 2 SCC 105 -important regarding the U.P. reservation statute, roster and unfilled reserved vacancies.

Upendra and 29 Others v. State of U.P and 3 others., Allahabad High Court, Neutral Citation-2018:AHC:207951-DB-considers the U.P. statutory scheme, roster and backlog.

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:

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 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 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 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 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 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 dismissed, accordingly.