Manish Choudhury, J. - The three writ petitioners were the applicants in the original application, O.A. No. 68/2013, before the Central Administrative Tribunal, Guwahati (the Tribunal, in short) and they have assailed the order dated 18.03.2016 passed by the learned Tribunal in O.A. No. 68/2013 seeking judicial review under Article 226 of the Constitution of India, as the reliefs sought for by the petitioners were not granted by the learned Tribunal.

2. Heard Mr. S. Dutta, learned counsel appearing for the petitioners as well as Mr. H.K. Das, learned counsel for the respondents.

3. Before dealing with the issues involved in the writ petition, a brief narration of the background facts appears to be necessary. By an Employment Notice dated 02.09.2006 published by the Railway Recruitment Board, Guwahati (the Board, in short), applications were invited for filling up a number of posts in different categories in the North East Frontier Railways (the Railways, in short). The present matter pertains to recruitment to the post of Trainee Assistant Station Master (ASM) in the Railways for which also applications were invited by the said Employment Notice. Initially, the Employment Notice mentioned about filling up of 69 vacancies in the post of ASM, which later on, was increased to 104. The requisite qualification for the post of ASM was mentioned in the Employment Notice as a university degree or its equivalent from a recognized university and the petitioners, all belonging to Un-reserved (UR) category and being eligible, submitted their candidatures for the post of ASM. When so advertised, the break-up for those 104 vacancies of ASM was indicated as Un-reserved (UR) - 42, Scheduled Castes (SC) - 15, Scheduled Tribes (ST) - 8, Other Backward Classes (OBC) - 28 and Ex-Servicemen (ESM) - 11.

4. On the basis of performance in the written test held on 30.09.2007 and in the aptitude test held from 21.07.2008 to 23.07.2008, the Board declared the results in respect of ASM on 24.09.2008 by publishing the roll numbers of 104 candidates who were found provisionally suitable, for appearing in the Document Verification (DV) stage. That apart, the Board also published roll numbers of 30% extra candidates consisting of 28 candidates for DV over and above the 104 nos. of candidates primarily to avoid shortfall in the panel. It was made clear to those 30% extra candidates that merely calling them for DV would not, in any way, entitle them to an appointment in the Railways. The writ petitioners names figured amongst those 30% extra candidates. Thereafter, on completion of DV stage held from 20.10.2008 to 23.10.2008, the Board on 06.01.2009 published the roll nos. of 99 candidates who were provisionally selected and empanelled for the post of ASM. Thereafter, on 12.02.2009, a second panel consisting of 5 candidates was published by the Board, thereby, making selection for all the 104 vacancies. Out of those 104 candidates selected for the post of ASM, 88 candidates joined leaving 16 vacancies unfilled.

5. At that stage, the petitioner nos. 1 & 2 along with one Pramod Kumar approached the Tribunal by way of an original application, O.A. No. 80/2012, seeking a direction to the Railways authorities to fill up the remaining 16 nos. of vacancies in ASM to complete appointments in 104 advertised vacancies, as per the Employment Notice dated 02.09.2006, from the 30% extra candidates panel. It was contended by the applicants therein that they were informed by a reply on an application made under the Right to Information Act, that 16 vacancies could not be filled up because of the expiry of the validity of the panel and matter as regards extension of validity of the panel was pending before the Board. The Tribunal disposed of the original application, O.A. No. 80/2012, on 27.03.2012 with the direction to the applicants therein to submit a comprehensive representation with the further direction to the Board to adjudicate the same by passing a speaking order, with the liberty to the applicants to approach the Tribunal in case they were not satisfied with the order. Pursuant to the above direction, those applicants preferred a joint representation on 15.04.2012 which was disposed of by a speaking order dated 17.09.2012. In the speaking order, it was mentioned that to meet the shortfall, the Railways asked for a replacement panel from the Board. The Board accorded approval for extension of currency of the panel on 16.04.2012. The Board, thereafter, provided a replacement panel of only 12 candidates instead of 16 candidates, as asked for, since 4 candidates from SC category were not available in the 30% extra candidates panel. 7 candidates out of the replacement panel of 12 candidates, joined in the post of ASM. In the replacement panel, the name of one of the earlier applicants, Sri Pramod Kumar, an OBC candidate, was empanelled. As he was 7th amongst OBC candidates in terms of merit, he was appointed since the total indented post (in replacement) for OBC category stood at 7. The other two applicants viz. Sri Mithilesh Kumar (UR - extra merit position - 12) and Sri Anadi Mishra (UR - extra merit position - 14) could not be considered for empanelment through replacement panel, because of their lower positions in the merit list for UR category there being only 3 indented post (in replacement) for UR category.

6. Assailing the said speaking order dated 17.09.2012, the original application, O.A. No. 68/2013, was preferred by the applicant nos. 1 & 3 in O.A. No. 80/2012 along with another applicant, Sri Ashit Kumar. Prayer, inter alia, was also made for a direction to the respondent Railways authorities to appoint the applicants from the 30% extra candidates panel for the remaining vacancies in terms of the Employment Notice dated 02.09.2006. The original application, O.A. No. 68/2013, was disposed of by an order dated 18.03.2016 rejecting the case of the applicants therein, the writ petitioners here, for employment.

7. Mr. S. Dutta, learned counsel appearing for the writ petitioners, has submitted that the respondent Railways authorities had committed error in filling up vacancies for the 104 posts advertised. Posts were advertised and filled up in excess of 50% from candidates belonging to reserved categories which resulted in less than 50% posts for UR categories and the same is against the principles of reservation. He has further submitted that the recruitment rules of Railways have provided that 10% in Class-III (Group-C) of the total vacancies to be filled up by direct recruitment are to be reserved for candidates from Ex-Serviceman (ESM) category but in the Employment Notice, 10% of the vacancies were reserved for ESM taking those out from the UR category. As per the Employment Notice for 104 vacancies in the post of ASM, 42 posts were reserved for candidates from UR category and 11 posts were for ESM category which meant that 11 posts for ESM were taken out from the posts meant for UR category. As there were 104 posts, the number of posts meant for UR category candidates should not have been less than 50%, which when translated into figures, results in 53 posts. Referring to the initial Employment Notice for 69 vacancies of ASM, he has submitted that when 35 posts ought to have been earmarked for UR category candidates only 28 posts were kept earmarked for UR category and 7 posts for ESM which made it clear that those 7 posts for ESM were taken out from posts of UR category. The relevant rule prescribes for reservation of 10% of the total vacancies for ESM from all categories proportionately and not from UR category only. In view of such vertical reservation for ESM in respect of 104 vacancies, thus, eating into the number of posts for UR category, the posts for UR category candidates fell below 50% and had those 11 posts for ESM were not taken out from the UR category post, there was every likelihood of the petitioners being appointed as ASM.

8. Per contra, Mr. H.K. Das, learned Standing Counsel appearing for the respondents, has submitted that there was no violation of the policy of reservation in carrying out the recruitment process pursuant to the Employment Notice dated 02.09.2006. He has submitted that there is no bar in filling up more than 50% vacancies from candidates other than UR category if there is shortfall for OBC, SC and ST categories in the relevant reservation roster. The 11 vacancies indicated for ESM category were not filled up following the principle of vertical reservation but were filled up in horizontal manner by distributing those posts proportionately amongst all the categories. He has further submitted that the posts are required to be filled up as per roster points and in the present case, the principle as regards roster points were duly followed. It is submitted that some of the relevant records pertaining to the recruitment process were destroyed in fire and the same were reconstructed to a great extent by collecting copies of some of the relevant documents from other offices. Apart from producing the records so reconstructed, Mr. Das has, referring to the relevant parts of the records, pointed out as to how the vacancies so advertised were filled up.

9. We have duly considered the submissions made by the learned counsels for the parties. We have also perused the materials made available from the records.

10. As has been indicated above, the recruitment process was initiated for filling up of 104 vacancies of ASM. Admittedly, after written test and aptitude test, the Board declared the results in respect of ASM by publishing a provisional select list containing 104 candidates and another 30% extra candidates panel containing the roll numbers of 28 candidates. It transpires that leaving aside 11 vacancies meant for ESM, the break-up of the remaining 93 vacancies was indicated as :- UR - 42, SC - 15, ST - 8 and OBC - 28. In respect of 11 vacancies for ESM, the break-up was UR - 5, SC - 2, ST - 1 and OBC - 3. Thus, there was proportionate distribution of 11 posts of ESM amongst all the categories, contrary to the submissions made on behalf of the petitioners. The total number of posts for candidates from UR category were 47 (=42+5). Similarly, the total number of posts for candidates from SC, ST and OBC categories were 17, 9 and 31 respectively. Initially, the Board forwarded a panel of 99 candidates containing 42 from UR category, 14 from SC category, 8 from ST category and 27 from OBC category respectively. In that first panel of 99 candidates, 8 names were forwarded for ESM category with the breakup, UR - 4, SC - 1, ST - 1 and OBC - 2. Later on, a second panel of 5 candidates was forwarded by the Board wherein 1 candidate from SC category, 1 candidate from ST category and 3 (=UR-1, SC-1 & OBC-1) candidates from ESM category were included. Out of those 104 candidates from the two panels, 88 candidates had joined the post of ESM. of the remaining 16, 3 were found medically unfit and 13 candidates did not report. As a result, 16 vacancies were left to be filled up. In respect of 88 vacancies so filled up, 44 were from UR category. That apart, 13, 7 and 24 candidates were from SC, ST and OBC categories respectively. Out of the 11 posts for ESM, 8 (UR - 5, SC - 2, ST - 0 & OBC - 1) joined leaving 1 post for ST and 2 posts for OBC left to be filled in. In respect of the remaining 88 candidates who had joined, the break-up is UR- 39, SC -11, ST - 7 and OBC - 23.

11. In the meantime, the respondent authorities made arrangement for extension of currency of the extra candidates panel in order to make a replacement panel therefrom in terms of the provision of RRBs manual. On receipt of approval from the Board extending the currency of the extra candidates panel, a replacement panel of 12 candidates consisting of UR = 3, ST = 2 (including 1 of ESM) and OBC = 7 (including 2 of ESM) candidates was forwarded on 16.04.2012 for appointment. There was no candidate from SC category in the extra candidates panel though there were 4 vacancies from SC category to be filled up and as such, no candidate from SC category was recommended in the replacement panel. Out of the 12 candidates in the replacement panel, 2 from the UR category and 5 from the OBC category joined. As there is no provision for de-reservation of any post specifically made for SC, ST and OBC categories and since the petitioners herein belong to the UR category, it is not necessary to consider the vacancies remained to be filled up from the SC, ST and OBC categories after the aforesaid exercise. Thus, after the aforesaid exercise, only 1 vacancy from the UR category had been left to be filled up. As has been indicated above, the merit positions of the petitioner no. 1 and the petitioner no. 2 in the 30% extra candidates panel were at serial no. 14 and serial no. 12 respectively, as per the impugned speaking order dated 17.09.2012. It transpires that in the written statement filed on behalf of the respondent Railway authorities before the Tribunal in O.A. No. 68/2013, the respective merit positions of the petitioner No. 1 and petitioner No. 2 were, however, indicated as 15 & 13 respectively whereas the merit position of the petitioner No. 3 was indicated as 5. In view of such merit positions of the 3 (three) petitioners, none of them was stated to have been offered appointment by the respondent authorities as vacancy left to be filled up from UR category was only 1 (one). We do not find any good and sufficient reason to disagree with the said stand of the respondent authorities. There is nothing on record to show that any of the 3 (three) petitioners is eligible, in terms of merit, to be offered appointment for the lone vacancy left from UR category to be filled up.

12. In so far as the contention of the petitioners as regards shortfall of vacancies for UR category below 50% is concerned, the picture that has emerged from the discussions made above is that out of the 104 vacancies advertised, total 47 vacancies were to be filled up from candidates belonging to UR category. Out of those 47 vacancies, 5 were meant for ESM category. The contention of the petitioners that reservation for ESM category was made vertically is belied by the Circular dated 14.11.2003 of the Railway Board written to the Chairman of all the Railway Recruitment Boards, annexed to the affidavit-in-opposition filed by the respondents. It is mentioned therein that reservation for Ex-serviceman (ESM) is horizontal reservation which cuts across vertical reservation. An ESM candidate selected under the reservation provided for them is to be placed in the appropriate category viz. SC / ST / OBC / UR to which he belongs. It has been clarified that in case requisite number of candidates from ESM category are not available, they are required to be distributed to the various categories as per shortage. In the recruitment process under reference, all 5 vacancies meant for candidates from ESM (UR) category out of the 47 nos. vacancies for UR category, have been filled up, leaving no vacancy to be filled up from candidates of UR category, appearing in the extra candidates panel wherein the petitioners have figured. From the above, it is clear that reservation provided for candidates from ESM category was horizontal and not vertical, as contended by the petitioners and, as such, the said contention is not acceptable.

13. The other contention raised on behalf of the petitioners is that the recruitment process undertaken for 104 vacancies had resulted into selection of candidates from reserved categories like SC / ST / OBC in excess of 50% is also misconceived, raised on a wrong notion. It is settled that the word "post" means an appointment, job, office or employment; a position in which a person is appointed. On the other hand, "vacancy" means an unoccupied post or office. There has to be a "post" in existence to enable the "vacancy" to occur. The cadre strength is measured by the number of posts comprising the cadre and the percentage of reservation has to be worked out according to the cadre strength. In such view of the matter, it is the number of posts, not number of vacancies, which is relevant in the matter of reservation. The number of posts filled up by reservation by any category in a cadre should be equal to the quota prescribed for that category. It is not permissible to fill up a post reserved for ST by a SC candidate or viceversa by exchange of reservation between SCs and STs. When sufficient number of candidates belonging to SC/ST/OBC categories is not available to fill up the vacancies reserved for them, the vacancies shall not be filled up by candidates not belonging to these categories and the vacancies remained unfilled are to be filled up in the next recruitment process, treating them to be "backlog vacancies". In the subsequent recruitment process when recruitment is made for vacancies, the "backlog vacancies" of reserved categories are also announced for recruitment, thus, resulting in two distinct group of vacancies - current vacancies and backlog vacancies. All the backlog vacancies of reserved categories are to be filled up by candidates belonging to those concerned categories without any restriction whatsoever. Thus, the concept of ceiling of 50% for reserved categories are not concepts applicable in respect of vacancies but strictly applicable in respect of posts in the cadre. In a given situation, in a recruitment process undertaken for filling up a number of vacancies there may be less than 50% vacancies to be filled up by candidates from UR category. That by itself does not mean that principles of reservations have been violated. There is no merit in the submission that in a recruitment process the vacancies for reserved categories has to be less than 50% of the total vacancies advertised.

14. It is not the pleaded case of the petitioners that after completion of the recruitment process undertaken for filling up of 104 vacancies, the cadre of ASM would be manned by candidates belonging to reserved categories in excess of 50%. It is also not the case of the petitioners at any stage that the ceiling of 50% for reserved categories had been breached by way of vertical reservation in the recruitment process undertaken for filling up 104 vacancies and the number of posts for ASM from UR category in the cadre had fallen below 50%. The petitioners have failed to show that the posts meant for UR category have been filled up by candidates belonging to the reserved categories.

15. In the light of the discussions made above, we do not find that the petitioners have been able to make a justifiable case for this court to exercise the power of judicial review under Article 226 of the Constitution of India in respect of the order dated 18.06.2016 passed by the learned Tribunal in O.A. No. 68/2013. As such, the instant writ petition is found to be bereft of any merit and the same, accordingly, stands dismissed. There shall, however, be no order as to cost.