Over 2 lakh Indian cases. Search powered by Google!

Case Details

KRISHNA GOPAL SHARMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Krishna Gopal Sharma v. State Of U.P. And Others - WRIT - A No. 1448 of 2007 [2007] RD-AH 10605 (15 June 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Reserved on  05th April 2007

Delivered on 15th June 2007

Civil Misc. Writ Petition No. 1448 of 2007

Krishnna Gopal Sharma  

Versus

State of U.P. and others

Hon'ble V.K.Shukla,J.

In the district of Aligarh there is an institution known as Champa Inter College, Alipur, District Aligarh. Said institution is duly recognized institution and is governed by the provisions as contained under U.P. Act No. II of 1921. Said institution is in grant-in-aid list of the State Government and the provisions of U.P. Act No. 24 of 1971 are fully applicable to the said institution. In the said institution in all three posts of Clerk have been sanctioned which is inclusive of one post of Head Clerk and two posts of Assistant Clerk. Post of Head clerk fell vacant on account of retirement of Shri Dharm Pal Singh 21.12.2000. In the said vacancy senior most Assistant Clerk Sri Kanta Prasad Sharma was promoted and his promotion was duly approved by the District Inspector of Schools vide order dated 20.12.2001. Qua remaining post of Assistant Clerk, one post stood filled up by making appointment of Smt. Prem Kumari in the year 1988 under Dying in Harness Rules and her appointment as such is one by way of direct recruitment, and hence 2nd post of Assistant Clerk was to be filled up by way of promotion. Managing Committee of institution passed resolution for promoting the petitioner who is Class IV employee on 25.10.2001 and the same was forwarded to the District Inspector of Schools on 08.11.2001. Petitioner has contended that since the date of resolution passed by the Committee of Management petitioner has taken over the charge of Assistant Clerk and has been working. It has further been contended that  in spite of the fact that resolution dated 25.10.2001 had been passed and  same has been forwarded to District Inspector of Schools, an order dated 11.12.2001 has been passed by District Inspector of Schools  recommending the name of Sri Abhishek Sharma for being appointed as Assistant Clerk under Dying Harness Rules. Abhishek Sharma was not permitted to join in the institution on the post of Assistant Clerk, in this background Civil Misc. Writ Petition No. 45831 of 2002 (Abhishek Sharma Vs. Regional Joint Director of Education, Agra Region, Agra and others) has been filed by him. Said writ petition was disposed of on 25.10.2002 with the direction to the Regional Joint Director of Education to decide the claim of Abhishek Sharma. Thereafter decision was taken by the Regional Joint Director of Education on 04.04.2003 directing for joining of Abhishek Sharma to some other institution. In the meantime Committee of Management of the institution advertised the said vacancy and the said vacancy was sought to be filled up by appointing Leeladhar. Principal of the institution represented the matter by mentioning that said post is to be filled up by way of promotion. Thereafter papers were transmitted to District Inspector of Schools for approval of appointment of Leeladhar on which objection has been raised by District Inspector of Schools. On the said objection being raised by the District Inspector of Schools, Leeladhar preferred Civil Misc. Writ Petition No. 47786 of 2005 (Leeladhar Vs. State of U.P. and others). This Court on 01.08.2005 asked the District Inspector of Schools to pass reasoned and speaking order on the representation of Sri Leeladhar. Pursuant to the order dated 01.08.2005 the Regional Joint Director of Education who is the Chairman of Regional Level Committee on 16.11.2006 passed an order accepting the appointment of Sri Leeladhar on the post of in question. The District Inspector of Schools has also accorded financial sanction to the appointment of respondent no. 6 on the vacancy in question. Said orders are subject matter of challenge before this Court.

In the present case  supplementary counter affidavit has been filed, and therein communication dated 12.06.2003 has been sought to be appended mentioning therein that promotion of petitioner dated 20.02.2002 has been disapproved for the post of Assistant Clerk  and post in question has been directed to be filled up from amongst scheduled caste category candidate by way of direct recruitment, as such rightful appointment has been made.  

Supplementary rejoinder affidavit has also been filed mentioning therein that at no point of time petitioner has knowledge of communication dated 12.06.2003 and his claim has been metted with arbitrary treatment.

Apart from this in the present case original record has also been summoned and with the consent of the parties present writ petition has been taken up for final hearing and disposal.

Sri V.K. Singh, learned counsel for the petitioner contended with vehemence that there are three sanctioned post of clerk in the institution including the post of Head Clerk and as per Chapter II Regulation 3(2) of Regulation framed under U.P. Act No. II of 1921, 50% post is to be filled up by way of promotion, consequently two post is to be filled up by way of promotion, and one post is liable to be filled up by way of direct recruitment. One post of Head Clerk has already been filled up by way of promotion by promoting Kanta Prasad Sharma, as Assistant Clerk of the institution, one post of Assistant Clerk stands filled up from an incumbent Smt. Prem Kumar of dying in harness category which is considered to be direct recruitment then in this background 3rd post which has occurred on account of promotion of Sri Kanta Prasad Sharma as Head Clerk qua the same it is the petitioner who is entitled for promotion on the post of clerk and the same cannot be filled up by way of direct recruitment. Coupled with this when there are only three sanctioned post, then under U.P. Act No. 4 of 1994 reservation cannot be applied as if  27% of the vacancy is offered to O.B.C category candidate and 21% of the vacancy is to be offered to Scheduled caste category candidate then it would be exceeding 50% ceiling provided on reservation as such post in question could not have been reserved for S.C category candidate, and further accepting and assuming that single post is reserved for schedule caste, once said post is promotional quota post, and no one eligible from Scheduled Caste category is available then same ought to have been filled up by promotion of General Category Candidate, as such writ petition deserves to be allowed.

From the side of the respondents Sri Vinod Sinha, Advocate contended that there are more than one post, then provisions of U.P. Act No. 4 of 1994 can be made applicable by pressing roster into application by way of rotation, and as no one eligible from Scheduled Caste category was available in the institution, as such as per policy formulated, post in question is to be filled up by way of direct recruitment and said exercise has been undertaken in the present case, as such valid action has been taken in the present case and no interference is required by this Court. Similar stand has been taken by learned Standing counsel, Shri K.K. chand also.

To start with, it is relevant to note that there are three sanctioned posts of Class III employee in the institution which is inclusive of one post of Head Clerk. Post of Head clerk stand filled up by promotion of Sri Kanta Prasad Sharma as Head Clerk and one post of Assistant Clerk is occupied and held by Smt. Prem Kumari who had been appointed under Dying in Harness Rules quota and her appointment is to be treated by way of direct recruitment. Out of three posts two posts is to be filled up by way of promotion and one post is to be filled up by way of direct recruitment. Third vacancy thus, falls within the promotional quota of 50%.

The issue to be adverted to in the present case first is that when post in question falls within 50% quota of promotion and simultaneously said post in question is reserved and no one in the feeder cadre from reserved category is available for promotion then can even in that contingency it has to be filled up by way of promotion or direct recruitment procedure can be invoked.

At this place relevant provision of U.P. Public Services (Reservations for SC,ST and OBC) Act 1994 (U.P. Act No. 4 of 1994) and the Government Orders which cover the field are also been looked into and quoted below:

U.P. Act No. 4 of 1994

Section 2(c)- "Public services and posts" means the services and posts is connection with the affairs of the State and includes services and posts in.

(i) a local authority

(ii) a co-operative society as defined in clause (f) of Section 2 of the Uttar Pradesh Co-operative the Uttar Pradesh Co-operative Societies Act, 1965 in which not less than fifty-one per cent of the share capital of the society is held by the State Government.:

(iii) A Board or a Corporation or a statutory body established by or under a Central or Uttar Pradesh Act which is owned and controlled by the State Government or a Government Company as defined in Section 617 of the Companies Act, 1956 in which not less than fifty-one per cent of the paid-up share capital is held by the State Government:

(iv) an educational institution owned and controlled by the State Government or which receives grants-in-aid from the State Government including a University established by or under a Uttar Pradesh Act except an institution established and administered by minorities referred to in clause (1) of Article 30 of the Constitution.

(v) respect of which reservation was applicable by Government Orders on the date of the commencement of this Act and which are not covered under sub-clauses (i) to (iv).

Section 3(1)- Reservation in favour of Scheduled Castes, Scheduled Tribes, and Other Backward Classes- (1) in public services and posts, there shall be reserved at the stage of direct recruitment the following percentages 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 Caste-Twenty-one percent

(b) in the case of Scheduled Tribes- Two percent.

(c) in the case Other Backward Classes of Citizens- twenty seven percent.

Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Scheduled II.

(2) if, even in respect of any year of recruitment any vacancy reserved for any category of provisions under sub-section (1) remains unfilled, special recruitment shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category.

(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 Caste.

(4) Where due to no-availability of suitable candidates any of the vacancies served under sub-section(1) remains unfilled even after special recruitment referred to in sub-section (2) it may carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub-section (1) shall not exceed fifty percent of the total vacancies.

(5) The State Government shall for applying the reservation under sub-section (1) by a notified order issue a roster which shall be continuously applied till it is exhausted.

(6) If a person belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates he shall not be adjusted against the vacancies reserved for such category under sub-section (1).

(7) if on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion such Government Orders shall continue to be applicable till they are modified.

Government Orders

   Government Order dated 12th July 1978

izs"kd]

Jh vkRe izdk'k]

mi lfpo]

mRrj izns'k 'kklu A

lsok esa]

f'k{kk funs'kd]

mRrj izns'k]

bykgkckn@y[ku�?

f'k{kk ¼7½ vuqHkkx y[ku�? fnukad 12 tqykbZ] 1978

fo"k;%& ekU;rk izkIr v'kkldh; lgk;drk izkIr m-ek- fo|ky;ksa esa fu;qfDr gsrq vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks vkj{k.k A

egksn;]

eq>s ;g dgus dk funs'k gqvk gS fd izns'k esa ljdkjh mPprj ek/;fed fo|ky;ksa esa fu;qfDr gsrq vHkh rd vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks dksbZ vkj{k.k izkIr ugha gS A v'kkldh; lgk;rk izkIr m- ek- fo|ky;ksa esa Hkh vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks vkj{k.k iznku djus dk iz'u dkQh le; ls 'kklu ds fopkjk/khu Fkk A vr% 'kklu us bl ekeys esa lE;d fopkjksijkUr ;g fu.kZ; fy;k gS fd izns'k ds lHkh v'kkldh; m-ek- fo|

ky;ksa dks] tks fd bl le; vuqnku lwph ij gSa ;k tks Hkfo"; esa vuqnku lwph ij yk;s tk;sa] jkT; ljdkj }kjk ns; vuqnku ds tkjh j[ks tkus vFkok muds vuqnku lwph ij cus jgus dh ,d vfuok;Z 'krZ ;g jgsxh fd os vius ;gkaW fu;qfDr;ksa esa vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa rFkk fiNM+s oxksZ ds lnL;ksa dh layXu fu;ekoyh ds vuqlkj vkj{k.k iznku djsaxsA

¼2½ vr% eq>s vkils ;g vuqjks/k djuk gS fd vki layXu fu;ekoyh dh ,d izfr lHkh lgk;rk izkIr m- ek- fo|ky;ksa dks Hkstrs gq;s mUgsa 'kklu ds mi;qZDr fu.kZ; ls voxr djk nsa vkSj mUgs ;g Li"V dj nsa fd mUgs bl fu;ekoyh dk ikyu djuk vfuok;Z gksxk vU;Fkk muds fo:) vko';d dk;Zokgh dh tk;sxh A

lgk;rk izkIr v'kkldh;] lgk;rk izkIr m- ek- fo|ky;ksa esa fu;qfDr

gsrq vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks

vkj{k.k iznku djus gsrq fu;ekoyh

¼1½ izR;sd v'kkldh; lgk;rk izkIr m- ek- fo|ky; ¼ftls vkxs fo|ky; dgk x;k gS�?½ esa v/;kidksa �?¼ftlds vUrxZr laLFkk dk iz/kku lfEefyr ugha gS ½ ds izR;sd in�??e ds inksa ij fuEukafdr oxksZ ds ,sls O;fDr;ksa ds fy;s tks fd ml in gsrq U;wure fu/kkZfjr ;ksX;rk j[krs gksa] vkjf{kr gksxk tks fd izR;sd oxZ ds lEeq[k vafdr gS %&

vuqlwfpr tkfr --------18izfr'kr

vuqlwfpr tutkfr ---------2 izfr'kr

fiNM+s oxZ ----------15izfr'kr

�?¼ftudh lwph ifjf'k"V ^^d** esa nh gqbZ gS½ ds fy;s

izfrcU/k ;g gS fd fdlh Hkh in�??e ds inksa esa fdlh Hkh oxZ ds vkjf{kr inksa dh x.kuk gsrq vk/ks ls de Hkkx NksM+ fn;k tk;sxk vkSj vk/kk ;k vk/kk ls vf/kd Hkkx dks ,d fxuk tk;sxk A

¼2�?½ ;fn fdlh fo|ky; esa] fdlh le; esa] fdlh in�??e ds v/;kidks ds inksa ij mijksDr oxksZ ds v/;kidksa dh la[;k mu oxksZ ds fy;s fu/kZfjr izfr'kr ls de gksxh rks tc rd ml oxZ ds fy;s mDr fu/kZfjr dksVk iw.kZ u gks tk;] igyh fjfDr rFkk izR;sd ,dkUrj fjfDr;kaW �?¼-----------------------------�?½ �?¼ pkgs og inksUufr ls Hkjh tk; vFkok lh/kh HkrhZ ls�?½ vkjf{kr le>h tk;sxh A

¼3½ fdlh oxZ fo'ks"k ds U;wure ;ksX;rk/kkjh vH;kfFkZ;ksa dh miyC/krk ds v/khu jgrs gq;s]&

¼d½ tgkaW mi;qZDr oxksZ esa ls fdlh ,d oxZ dk fu/kkZfjr dksVk viw.kZ gks] ogkaW vkjf{kr inksa dks mlh oxZ fo'ks"k ds vH;kfFkZ;ksa ls Hkjk tk;sxk] vkSj

¼[k½ tgkaW mi;qZDr oxksZ esa ls ,d ls vf/kd oxksZ dk fu/kkZfjr dksVk viw.kZ gks] ogkaW vkjf{kr inksa dk ml izR;sd oxZ ds vH;kfFkZ;ksa ls mlh �??e esa Hkjk tk;sxk A bl dze esa bu oxksZ dk mYys[k fu;e ¼1½ fn;k gqvk gS A ;g izfdz;k rc rd nksgjkbZ tkrh jgsxh tc rd fd lHkh vkjf{kr in Hkj u tkaW;sa A

¼4½ ;fn mi;qZDr oxksZ esa ls fdlh oxZ dk dksVk iw.kZ u gqvk gks vkSj ml oxZ dk lEcfU/kr in gsrq U;wure ;ksX;rk/kkjh dksbZ vH;FkhZ Hkh miyC/k u gks rks ,slh n'kk esa vkjf{kr in dh fjfDr ml oxZ ds ckn okys ,sls oxZ ds vH;FkhZ ls] ftldk dksVk viw.kZ gks] Hkjh tk;sxh  

¼5½ tgkaW mi;qZDr oxksZ esa ls dksbZ Hkh ,slk oxZ u gks ftldk dksVk viw.kZ gks] vFkok tgkaW dksbZ ,slk oxZ gks ftldk dksVk viw.kZ gks fdUrq ml oxZ dk dksbZ fu/kZfjr ;ksX;rk/kkjh vH;FkhZ miyC/k u gks] rks ml n'kk esa og fjfDr lkekU; vH;fFkZ;ksa ls Hkjh tk;sxh A

¼6½ tgkaW lh/kh HkrhZ ls Hkjk tkus okyk dksbZ in buesa ls fdlh Hkh oxZ ds fy;s vkjf{kr gks] rks ml in ds foKkiu esa bl ckr dk vo';eso mYys[k fd;k tk;sxk fd og in ml oxZ ds fy;s vkjf{kr gS A

¼7½ mijksDr O;oLFk fyfidh; rFkk prqFkZ Js.kh deZpkfj;ksa ds lEcU/k esa Hkh ykxw gksxh A

¼8½ ;s fu;e mu inksa ds lEcU/k esa ykxw ugha gksaxs ftu ij mRrj izns'k gkbZLdwy rFkk baVj dkyst �?¼ vkjf{kr lewg v/;kid ½ v/;kns'k] 1978 ds vUrxZr vkjf{kr lewg v/;kidksa dk vkesyu fd;k tk;sxk A

Government Order dated 26th April 1983

vkj{k.k esa fu;qfDr lEcU/kh uhfr

la0 ek0@ 1685@15&7&1983&12 32@83

fo'k;&7 vuqHkkx y[ku�?] fnukad 26 vizSy] 1983

fo"k; %& v'kkldh; lgk;rk izkIr m0 ek0 fo|ky;ksa esa fu;qfDr gsrq vuqlwfpr tkfr;ksa@ tutkfr;ksa ,oa fiNMs oxksZ dks vkj{k.k !

egksn;]

ekU;rk izkIr lkgkf;~;d mPpre ek/;fed fo|ky;ksa esa fofHkUu inksa esa dh tkus okyh fu;qfDr;ksa esa vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa ,oa fiNMs oxksZ ds vH;fFkZ;ksa ds fy;s fd;s tkus okys vkj{k.k ls lEcfU/kr 'kklukns'k la[;k ek0@2642@15&7&17 &71& fnukad 12&7&78 ds vuqdze esa eq>s ;g dgus dk funsZ'k gqvk gS fd mDr 'kklukns'kksa ls layXu funsZ'kksa esa vU; ckrksa ds lkFk ;g bafxr fd;k x;k Fkk fd vkjf{kr oxZ ds vH;fFkZ;ksa dh fu;qfDr ds izlax esa ,sls vH;fFkZ;ksa ds in gsrq fu/kZkj.k ;ksX;rk dk orZeku lsok Hkkx i;ZkIr le>k tk;sxk vkSj ;fn og izfrcU/k iwjk gS rks lEcfU/kr vH;FkhZ dks iz'uxr in esa vkjf{kr dksVk ds in ij fu;qDr fd;k tk ldrk gS ! ekeys esa iqufoZpkjksijkUr 'kklu us ;g fu.kZ; fy;k gS fd vkjf{kr dksVk ds inksa esa fu;qfDr gsrq v)Z vH;fFkZ;ksa }kjk pkgs ,slh fu;qfDr lh/kh HkrhZ }kjk dh tk jgh gks vFkok izksUufr] }kjk in gsrq fu/kZkj.k U;wure ;ksX;rk dk vo/kkj.k ekax i;ZkIr u le>k tk;sxk cfYd lkFk gh ,sls vH;FkhZ dk p;u djus okys izkf/kdkjh@ fudk; ds n`f"Vdks.k ls in ls fu;qfDr gsrq mi;qZDr gksuk Hkh vko';d gksxk !

2& tgWk rd izksUufr;ksa }kjk dh tkus okyh fu;qfDr;ksa dk lEcU/k gS 'kklu us ;g fu.kZ; fy;k gS fd ,slh fu;qfDr;ksa esa fiNMs oxksZ ds vH;fFkZ;ksa ds fy, dksbZ vkj{k.k u gksxk !

3& eq>s ;g dguk gS fd 'kklukns'k la0 2642@15&7&12 71@74 fnukad 12 tqykbZ] 1983 esa layXu funsZ'k iwoZ izLrjksa esa mfYyf[kr vkos'kksa dh lhek rd la'kksf/kr le>s tk;sxs !

4& d`i;k leLr laLFkk/kkfj;ksa dks 'kklu ds mi;qZDr vkns'kksa us ;Fkk'kh/kz voxr djkus dk d"V djsa vkSj ;g lqfuf'pr djsa fd vkj{k.k lEcU/kh vkns'kksa dk ifjikyu muds }kjk rn~uqlkj fd;k tk; ! d`i;k tkjh fd;s x;s vius funs'kksa dh 50 izfr;ka 'kklu dks Hkh 'kh/kz Hkstus dk d"V djsa !

Hkonh;]

jke yky 'keZk

mi lfpo

dze la[;k &1

la[;k 22@25@82&dkfeZd&2

Government Order dated 18.12.1990

dkfeZd vuqHkkx&2] 'kklukns'k la[;k 22@58@82&dkfeZd&2@90] fnukad 18 fnlacj] 1990

fo"k; % jkT;k/khu vkfn lsokvksa ds inksUufr dksVs esa vuqlwfpr tkfr@ tutkfr ds vH;fFkZ;ksa dh fcuk Hkjh gq, vkjf{kr fjfDr;ksa dh iwfrZ !

'kklu ds laKku esa ;g vk;k gS fd iks"kd laoxZ esa vuqlwfpr tkfr@tutkfr ds vgZ mi;qDr vH;fFkZ;ksa dh vuqiyC/krk ds dkj.k ;k rks ,sls inksa dks yEch vof/k rd [kkyh j[kuk iMrk gS vFkok mUgsa vLFkbZ@LFkukiUu :i ls lkekU; oxZ ds vH;fFkZ;ksa ls Hkjs tkus ds izLrko izkIr gksrs gSa ! Qyr% vkjf{kr inksUufr dksVs ds inksa ij vkj{k.k dksVs dh iwfrZ ugha gks ikrh gS rFkk vkjf{kr oxZ ds vH;FkhZ mPp inksa ij lsok ds volj ikus ls oafpr jg tkrs gSA ! vkjf{kr inksa dks izkFkfedrk ds vk/kkj ij vkjf{kr oxZ ds vH;fFkZ;ksa ls Hkjus ds mn~ns'; ls 'kklu }kjk lE;d fopkjksijkUr fuEukafdr fu.kZ; fy;s x;s gSa %&

1& ftu lsokvksa esa lh/kh HkrhZ rFkk inksUufr nksuksa dksVk fu/kZkfjr gS muesa iks"kd lanHkZ esa vuqlwfpr tkfr@ tutkfr ds vgZ vH;fFkZ;ksa ds inksUufr gsrq vuqiyC/krk ij mDr fjfDr;Wk vLFkkbZ :i ls lh/kh HkrhZ ds dksVs esa ifjofrZr dh tk ldsaxh !

2& iks"kd laoxZ esa vuqlwfpr tkfr@tutkfr ds vgZ vH;fFkZ;ksa ds miyC/k gksus ds ckn lh/kh HkrhZ dksVs esa vkjf{kr fjfDr;ksa dks iqu% inksUufr dksVs esa LFkkukUrfjr fd;k tk;s rkfd HkrhZ ds nksuksa L=ksrksa esa larqyu cuk jgs !

3& lh/kh HkrhZ ds inksa ij vkxkeh p;u vk;ksftr djus gsrq rn~uqlkj vf/k;k;u Hksts tk;sa] vkSj ;fn iwoZ esa vf/k;k;u Hksts tk pqds gksa rks muesa okafNr la'kks/ku dj fn;s tk;sa !

4& mDr vkns'k rkRdkfyd izHkko ls ykxw gksaxs vkSj bl lanHkZ esa iwoZ izlkfjr leLr vkns'k bl lhek rd la'kksf/kr le>s tk;sa !

2& d`i;k mijksDrkuqlkj dk;Zokgh lqfuf'pr djus gsrq vius v/khu leLr fu;qfDr izkf/kdkfj;ksa dks funsZf'kr djus dk d"V djsa !

3& ;g vkns'k rkRdkfyd izHkko ls ykxw gksaxs !

4& mDr vkns'k rkRdkfyd izHkko ls ykxw gksaxs vkSj bl lanHkZ esa iwoZ izlkfjr leLr vkns'k bl lhek rd la'kksf/kr le>s tk;sa !

2& d`i;k mijksDrkuqlkj dk;Zokgh lqfuf'pr djus gsrq vius v/khu leLr fu;qfDr izkf/kdkfj;ksa dks funsZf'kr djus dk d"V djsa !

3& ;g vkns'k rkRdkfyd izHkko ls ykxw gksaxs !

After said provisions quoted above have been perused the factual position which is emerging that reservation of scheduled castes, scheduled tribes and other backward classes, admittedly, is governed by U.P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the ''Act' in short). The aforesaid Act was amended by U.P. Public Services (Reservation for Scheduled Castes, Schedules Tribes and Other Backward Classes) (Amendment) Act, 2002. Section 3 has been amended by the aforesaid Act and as provided under Section 1(2), the aforesaid amendment has been given effect with effect from 15.9.2001.

A perusal of the second proviso of Section 3(1) makes it clear that in any year of recruitment, reservation shall not exceed either 50% of the total vacancies in that year of recruitment or even 50% of the cadre strength of the service to which the recruitment is to be made. It clearly means that in a particular year of recruitment, the number of vacancies advertised shall not be reserved more than 50%. However, if 50% reservation of the vacancies in that particular year may result in making recruitment of reserved category candidates to the extent of more than 50% of the cadre strength of the service, in such case the reservation of the vacancies shall be reduced so as not to allow it to exceed 50% of the cadre strength of the service.

Under U.P. Act No. II of 1921 and Regulations framed thereunder there has been no provision providing for the reservation to the teaching and non-teaching staff of the institution. State Government as far as back on 12.07.1978 in respect of recognized aided institution for teaching and non-teaching staff had issued an order providing reservation of post for S.C/S.T. and Other Back ward Classes of citizens where the vacancies were to be filled up by way of promotion. Said Government Order contained condition No. 5 wherein it has been mentioned that in case in aforementioned relevant year of recruitment no one was available in the next lower grade from reserved category then in that event said post could be filled by way of direct recruitment from amongst general category candidate. Validity of aforementioned Government Order had been considered by a Division Bench of this Court in the case of Krishna Pal Singh Vs. Government of U.P. and others reported in 1981 UPLBEC 521 wherein this Court took the view that said Government Order has statutory force and same will be effective notwithstanding any Regulation framed by the Board. Division Bench of this Court while considering the provision of the Chapter-II Regulation 6 of U.P. Intermediate Education Act 1921 alongwith the Government Order dated 12.07.1978 concluded that if the vacancy occurs in the L.T. Grade then that should be filled up by way of promotion from member of Scheduled Castes, Scheduled Tribes or Backward Classes if he posses the minimum requisite qualifications. Subsequent to the said Government Order another Government Order dated 26.04.1983 has been issued and the same has modified the earlier Government Order dated 12.07.1978 and promotion benefit has been withdrawn qua "OBC" category candidates. State Government as policy decision took the view that in the matter of promotion there would be no reservation qua Other Backward Class category candidate. Subsequent to this Government Order dated 18.12.1990 has been issued by the Karmik Department and therein it has been mentioned that State Government has acquired knowledge that in the feeder cadre, on account of non-availability of Scheduled Caste/Scheduled Tribes candidates posts are lying vacant for long period and further resolutions are being received to fill up the said post on temporary/stop gap basis from amongst General category candidates and net effect of the same is that posts reserved are not filled up from amongst reserve category candidate. In this background State Government took decision providing therein that where quota both by way of direct recruitment and promotion has been provided for and there is no candidate available in feeder Cadre from amongst Scheduled Caste/Scheduled Tribes category then in that event said vacancies can be converted on temporary basis to be filled by way of direct recruitment and the moment in the feeder Cadre Scheduled Caste/Scheduled Tribes category candidates are available then in that event the post reserved under direct recruitment quota would be transferred to promotional quota so that balance is there in between direct recruitment quota and promotion quota. It has been mentioned in the Government Order dated 18.12.1990 that earlier Government Order issued in this respect shall stand cancelled. Said Government Order dated 12.07.1978 in its modified form dated 18.12.1990 still holds the field and till date said Government Order has not been rescinded, modified or revoked. In the case of Indra Sawhney and others Vs. Union of India and other reported in 1992 Supp. (3) SCC 217, reservation, in the matter of promotion was disapproved, however it was mentioned that in case there are existing provision giving benefit of reservation in the matter of promotion then same be permitted to be continued for a period of five years. State Government came out with U.P. Act No. 4 of 1994 with a view to provide reservation in public service and post in favour of persons belonging to SC/ST/ and OBC category and therein sub-section (7) of Section 3 had been inserted by mentioning that Government Orders which provided for reservation in promotion as on the date of commencement of the Act, would continue to be applicable till they are modified or revoked. Constitutional amendment was also made by inserting Clause (4-A) in Article 16 of Constitution w.e.f. 17.06.1995 which enjoined State Government to make provision for reservations in favour of SC/ST category candidate.

Validity of Section 3(7) of U.P. Act No. 4 of 1994 has been subject matter of challenge before Division Bench of this court, in the case of Sudhir Kumar Anand Vs. U.P. State Electricity Board reported in 2001 (1) UPLBEC 708 and this court has upheld validity of the same. Relevant extract of the said judgement is being quoted below:

"5. The validity of Sub-Section (7) of Section 3 of U.P. Act No. 4 of 1994 has been questioned by Sri Ravi Kiran Jain on the ground that the State Legislature was not competent to enact sub-section (7) of Section 3 of the U.P. Act No.4 of 1994 in view of the pronouncement by the Apex Court in Indra Swhney's case. The arguments is mis-conceived. It is evident that sub-section (7) of Section 3 by itself does not provide for any reservation. Rather it simply visualises that the Government Orders providing for reservations in promotion, as on the date of commencement of the Act will continue to be applicable till they are modified or revoked. Accordingly, we are of the view that the Government Orders on the subject of reservation in favour of Scheduled Castes for appointment to posts to be filled by promotion in favour of Scheduled Castes for appointment to posts to be filled by promotion in force on the date of commencement of the Act were capable for being invoked incidently of sub-section (7) of Section 3 of U.P. Act No. 4 of 1994 by virtue the directions contained in Indra Swhney's case and after insertion of the clause (4-A) in Article 16 of the Constitution of w.e.f. 17.06.1995, no exception can be taken to the provisions contained in sub-section (7) of Section 3 of the Act which became valid and operative by strength of clause (4-A) of Article 16 of the Constitution. It is true that but for insertion of clause (4-A) in Article 16, sub-section (7) of Section 3 would not have been available for being invoked on expiration of period of five years from 15.11.1993 but now after insertion of clause (4-A) in Article 16 of the Constitution, Section 3(7) of U.P. Act No. 4 of 1994 has become a valid law and, therefore, it cannot be struck down a violative of Articles 14 and 16 of the constitution. It may be pertinently observed that now after insertion of clause (4-A) in Article 16 of the Constitution the appropriate Government can, in exercise of its executive powers under Articles 73 and 162 of the Constitution, as the case may be, can provide for reservation in favour of Scheduled Castes/ Scheduled Tribes in matters of promotion of any class or classes of posts in the services under the State Government Order dated 31.03.1996 (Annexure CA-7) and other Government Orders referred to therein were issued by the State Government in exercise of its executive power under the Constitution.

Earlier percentage of reservation for SC category candidate was 18% and same was extended to 21%. The said extension of quota from 18% to 21% has been subject matter of challenge before this Court in Full Bench judgement of this Court in the case of V.K. Bannerji Vs. State of U.P. and others reported 1999 (1) ESC 644 wherein Full Bench of this Court has upheld the validity of the Government Order dated 10.10.1994 increasing reservation quota in promotion in favour of Scheduled Castes candidates from 18% to 21% under Section 3(7) of the U.P. Act 4 of 1994.This Court in the case of Sunil Kumar Mishra Vs. Regional Selection Committee and others reported in 2004 (2) UPLBEC 1520 has taken the same view after considering various Government Orders, that reservation is applicable with full force in the matter of promotion upto 21% of the cadre strength. Hon'ble Apex Court in the case of M. Nagraj Vs. Union of India 2006,AIR SCW 5482 has mentioned that clause (4A) of Article 16 is an enabling provision, which gives freedom to State to provide for reservation in the matter of promotion, and Clause (4A) applied only to SC/ST and they do not obliterate any of the constitutional requirement i.e. ceiling limit of 50%, quantitative limitation.  

The logical conclusion on the basis of reference made above is that though in the matter of promotion under U.P. Act No. II of 1921 and the Regulations framed thereunder there is no mention for providing any reservation, but as promotion is to be made in "public service and post" as defined under Section 2(c) and 2(c) (iv) of U.P. Act No. 4 of 1994 then in terms of Section 3(7) of U.P. Act No. 4 of 1994, the Government Orders which covered the field of promotion qua SC/ST category candidates, continue to be applicable till they are modified or revoked. As till date said Government Orders have not been revoked or modified, net effect of the same would be that 21% of vacancies is to be filled by way of promotion from amongst SC category and 2% of vacancies from amongst ST category candidates.

In this background the main question posed is being looked into that in the absence of Schedule caste/Scheduled Tribes category candidate being available in the feeder cadre, can the post be offered to General category candidate from promotion quota or same shall be filled by by way of direct recruitment, from amongst reserve category candidate . State Government in its wisdom had chosen to provide reservation in promotion to SC/ST category candidates and has also prepared roster for implementation of the aforementioned policy of promotion. Provision of promotion with roster for promotion of SC/ST employees was already there when U.P. Act No. 4 of 1994 had been enforced. On 16.10.1994 percentage of reservation was increased qua SC candidates and of the same date fresh roster was published. Thereafter another roster for promotion of SC/ST employees was prepared on 15.12.2001 but same was cancelled on 23.11.2001 and fresh roster has been introduced on 25.06.2002. Thus, provision of promotion of SC/ST category candidate with roster has been inexistence both before enforcement of U.P. Act No. 4 of 1994 and after enforcement of U.P. Act No. 4 of 1994. The purpose of providing roster has been considered by Hon'ble Apex Court in the case of R.K.Sabharwal and others Vs. State of Punjab and others reported in 1995 (2) Supreme Court Cases 745. Relevant paragraphs of aforementioned Constitutional Bench judgement 4,5,6 and 10 are being quoted below:

" 4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts and in the event of their appoint to the said posts their number cannot be added and taken into consideration for working out the percentage or reservation. Article 16 (4) of the Constitution of India permits the State Government to make any provisions for the reservation of appointments or post in favour of any backward Class of citizens which in the opinion of the State is not adequately represented in the Services under the State. It is, therefore incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State services. While doing so the State Government may take the total population of a particular backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Classes have already been appointed/ promoted against the general seats. As mentioned above the roster point which is reserved for a backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidates can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/ rules providing certain percentage of reservations for the Backward Classes are operative the same have be followed. Despite any number of appointees/promotes belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.

5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/ Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation." 16% of the posts..... are reserved for members of the Scheduled Caste and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1, 7, 15, 22, 30, 37, 44, 51, 58, 65,72,80,87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of the Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved category is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and no thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation of their population. The numerical quota of post is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees  occupy the posts meant for them in the roster. The operation of the roster and the 'running account' must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1,7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.

6. The expressions 'post' 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 respect of a post in a cadre. As a consequence the percentage of reservations 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.

10. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster., 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31.12.1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster point it would be open to the State Government to forward the point in a just and fair manner."

As per the said judgment reservation has to be done in relation to the number of post comprising the cadre and not in relation to vacancies. The Word "posts" means an appointment, job, office or employment a position to which person is appointed. On the other hand, Vacancy means an unoccupied post or office. The place meaning of the two expressions makes 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. The roster indicates the reserve points, when percentage for reservation is fixed in respect of a particular cadre and same has to be taken that the posts shown at the reserve points are to be filled up from amongst the members of reserve category candidates and the candidates belonging general category are not entitled to be considered for the reserved posts. State Government, however has been vested with the authority in the event of non-availability of reserved candidate at the roster point to carry forward the point in just and fair manner. Thus, this much is clear that when the point is fixed for reserved category candidates by way of roster then same has to be filled from amongst the members of reserve category and the candidates belonging to General category are not entitled to be considered on the reserved post and the Sate Government has discretion to carry forward the point in just and fair manner. Thus, reserved post cannot be offered to other category candidate and State Government is empowered to carry forward the said point in just and fair manner.

In the case of Ajit Singh and others Vs. State of Punjab and others reported in 1999 (7) Supreme Court Cases 209 Hon'ble Apex Court while considering the question as to whether right to be considered for promotion is a fundamental right granted under Article 16(1) or mere statutory right has taken the view that right to be considered for promotion is fundamental right and further that the provision as contained under Article 16 (4), 16(4-A) of the Constitution is in the nature of enabling provisions and there is no directive or command implicit in it and same vest discretion in the State to consider providing reservation. In the said judgement itself after noticing Article 16(1) dealing with fundamental right and Article 16(4) and 16(4-A) as enabling provisions, the exercise of balancing Article 16(1) and Article 16 (4) and 16(4-A) has been undertaken and in this direction earlier judgement of Hon'ble Apex Court has been referred to where in balancing principles has been enunciated. Constitutional Bench judgement reported in AIR 1963 SC 649 M.R. Balaji Vs. State of Mysore has been referred to wherein it has been stated that the interests of reserved classes must be balanced against the interests of other segments of society. Further observations made in the case of Indra Sawhney and others Vs. Union of India and other reported in 1992 Supp. (3) SCC 217 has been extracted by mentioning that provisions under Article 16(4) has been conceived in the interest of certain sections of society and same should be balanced against the guarantee of equality enshrined in Clause 1 of Article 16 held out to every citizens and to the entire society, and the Court has to ensure that in the matters relating to affirmative action by the State, the rights under Article 14 and 16 of the Constitution of India of an individual to equality of opportunity are not affected. A reasonable balance has to be struck so that affirmative action does not lead to reverse discrimination. These two decisions of Hon'ble Apex Court has been followed in the case PGI of Medical Educations Research Chandigarh vs. Faculty Education reported in 1998 (4) SCC. Relevant paragraph 31 and 32 is being quoted below:

31.There is no difficulty in appreciating that there is need for reservation for the members of the Scheduled Castes and Scheduled Tribes and Other Backward Classes and such reservation is not confined to the initial appointment in a cadre by also to the appointment in a promotional post. It cannot however be lost sight of that in the anxiety for such reservation for the backward classes, a situation should not be brought about by which the chance of appointment is completely taken away so far as the members of the other segments of the society are concerned by making such a single post cent percent reserved for the reserved categories to the exclusi8on of other members of the community even when such a member is senior in service and is otherwise more meritorious.

32.Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decision of this Court in M.R. Balaji Vs. State of Mysore reported in AIR 1963 SC 649 and T Devadasan Vs. Union of India reported in AIR 1964 SC 179 and R.K.Sabharwal and others Vs. State of Punjab and others reported in 1995 (2) Supreme Court Cases 745. Even in Indra Sawhney and others Vs. Union of India and other reported in 1992 Supp. (3) SCC 217 the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. Vs. U.S.V Balram reported in 1972 1 SCC 660 and C.A Rajendran Vs. Union of India AIR 1968 SC 507. It has been indicated in Indra Swhney case that clause (4) of Article 16 is not in the nature of an exception to classes (1) and (2) of Article 16 but in an instance of classification permitted by Clause (1). It has also been indicated in the said decision that Clause (4) of Article 16 does not cover the entire filed covered by Clauses (1) and (2) of Article. In Indra Swhney this court has also indicated that in the interest of the backward classes of citizens, the State cannot reserve all the appointments under the State of even a majority of them. The doctrine of equality of opportunity in clause (1) of Article 16 is to be reconciled in favour of backward classes under clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.

Hon'ble Apex Court in the case of M. Nagraj Vs. Union of India reported in 2006,AIR SCW 5482 has taken the view that Constitutional provisions must be construed in wide and liberal manner so that constitutional provisions does not get fossilized but remains flexible enough to meet newly emerging problems and challenges. Clause (4A) of Article 16 emphasis the opinion of the State in the matter of adequacy of representation and same being enabling provision gives freedom to the State Government to provide for reservation in the matter of promotion, keeping in mind the controlling factors or the compelling reasons namely backwardness and inadequacy of representation which enables the State to provide for reservation keeping in mind the overall efficiency of administration of State under Article 335 and same does not obliterate any of the constitutional requirements, namely ceiling limit of 50% (quantitative limitation) the sub-classification of OBC on one hand and STs on the other hand, the concept of post based Roster with in built concept of replacement.    

Article 14, 15 and 16 including Articles 16(4) and Article 16 (4-A) has to be applied in such a manner so that balance is struck in the matter of appointments, by creating reasonable opportunities for reserved class both in the matter of direct appointment and in promotion for SC/ST category candidate, as well as candidates from other segments of society, State Government in order to provide adequate representation to SC/ST category candidates has chosen to provide reservation t0 SC/ST category candidate, and the same has been sought to be extended in the matter of promotion also. State Government in its wisdom has published roster, qua the promotion and therein, fixed points have been provided for. Roster points are nothing else but the indicator of balance which has been sought to be maintained qua candidates of other category. By preparation of roster, balance has been struck qua the interest of reserve category candidate and other segments of the Society. Managing Committee of every institution is obliged to prepare roster, qua their respective institution grade wise as per model roster, prescribing fixed points, and the concerned District Inspector of Schools has full authority to see and supervise that said roster has been prepared strictly in consonance with the model roster and its implementation is also in accordance to the same. If this is ensured, the parties will know their position and there will be no much room of grievance on the part of both category of candidates in this respect as it would be maintaining balance between the demands of merit and social justice. Once a particular point for a particular section under the roster has been declared, then the post at the said point would be offered to candidate from the said category and to no one else. Roster would operate, only till all the roster points in cadre are filled and quota prescribed in instruction are achieved. The same would be in the form of running account, from year to year, and subsequent vacancies are to be filled from the categories to which the post belonged. The operations of roster, for filling cadre strength by itself ensures that reservations remains, within 50% limit so that balance is not disturbed and right of General Category candidates is not defeated. Right of consideration of candidature for promotion has been held to be fundamental right, but said right will come into play, when incumbent falls within the zone of consideration. Once post in question is reserved by providing fix point, then general category candidate is excluded from the zone of consideration. This is the rigor of roster point. Thus, post meant for SC/ST candidate, shown in roster has to be offered to SC/ST candidate and as mentioned in R.K. Sabarwals (supra) case, roster cannot be changed or altered and said point post has to be filled up only from the said category and State Government can only forward the said point and here State Government has taken decision, that in the event of non availability of reserve category candidate, in the matter of promotion, the said post would be shifted to direct recruitment quota and in future, if candidates are available in feeder cadre, then necessary adjustment would be made .

The view which has been taken above, same view has been taken by this Court in the case of Rama Kant Mishra Vs. Committee of Management reported in 2005 (4) ESC 2517, which was a case of teacher that in case post was reserved for Scheduled Caste Category candidate, and no one eligible in the next grade was available, then same would have to be filled up from Scheduled Caste category candidate by way of direct recruitment, and same could not be filled up by way of promotion from amongst General Category candidates. Following the said judgment, on 11.08.2005, writ petition filed by Smt, Sunita Bhagat was dismissed. Smt. Sunita Bhagat preferred Special appeal No.1094 of 2005, which was decided on 22.09.2005, and the view taken in the case of Rama Kant Mishra was disapproved as follows:

"As observed above, the judgment of Rama Kant Mishra's case (supra) given by learned single Judge, following which the writ petition of the appellant was dismissed, proceeded on the premise that the Government Order dated 18th December, 1990 specifically permits for converting the post for promotion which is reserved for scheduled caste category candidate into a direct recruitment and vice versa although the said Government Order is not applicable in the present case and the case of the appellant is fully covered by Clause-5 of the Government Order dated 12th July, 1978, we cannot agree with the view taken by the learned single Judge in Rama Kant Mishra's case (supra). We hold that the judgment in Rama Kant Mishra's case (supra) does not lay down the correct law. The writ petition of the appellant was dismissed on the basis of the said judgment.

Rule 10 of the U.P. Secondary Education Service Selection Board Rules, 1998 provides for source of recruitment to various categories of teachers. For lecturer grade 50% quota are to be filled up by direct recruitment and 50% by promotion from amongst substantively appointed teachers of the trained graduate grade. Proviso to the said Rule provides that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment. Thus only in the event suitable eligible candidates are not available for recruitment for promotion, the post can be filled up by direct recruitment. Rule 10 of 1998 rules is quoted below:

"10. Source of recruitment- Recruitment to various categories of teachers:-

(a) Principal of an  By direct recruitment

    Intermediate College or

    Head Master of a High School

(b) Teachers of lecturers grade    (i) 50 per cent by direct

recruitment (ii) 50 per cent by promotion from amongst substantively appointed teachers of trained graduate grade

(c) Teachers of Trained   promotion from amongst          

    graduate grade          substantively appointed teachers of trained graduate grade

Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment

Provided further that if in calculating respective percentage of posts under this rule there comes a fraction then the fraction of the post to be filled by direct recruitment shall be ignored and fraction of the post to be filled by promotion shall be increased to make it one post."

Rule 14 of 1998 Rules requires consideration of all trained graduate teachers to be considered where any vacancy is to be filled up by promotion. Rule 14 of 1998Rules is quoted below for ready reference:

"14. Procedure for recruitment by promotion (1) where any vacancy is to be filled by promotion all teachers working in trained graduate grade or certificate of Training Grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first date of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates grade, as the case may be, without there having applied for the same." From conjoint reading of the aforesaid two rules, it is clear that every teacher of trained graduates grade who possess the qualification prescribed for the post and have completed five years continuous regular service is entitled to be considered for any vacancy which is to be filled up by promotion without there having appointed for the same. Even on the strength of Clause -5 of the Government Order dated 12th July, 1978 when a post reserved for any reserve category candidates the same has to be filled up by any other reserved category candidate whose quota is unfilled up and in the event of non-availability of any reserved category candidate the post can be filled up by general category candidate, the above clause implies a duty on the authorities to consider the case of trained graduate teachers for promotion of general category in the event no eligible candidate of any reserved category is available. In the present case admittedly no eligible candidate of scheduled caste category was available in trained graduates grade for being promoted as lecturer Psychology. It is not the case of any of the parties that apart from scheduled caste category candidate there was any other reserved category candidate available for promotion on the post of lecturer Psychology, consequently the post of lecturer Psychology was to be filled up by considering the general category candidates fulfilling the qualification for promotion by virtue of Clause -5 of the Government Order dated 12th July, 1978 as noted above.

Although the appellant has contended that no requisition was sent by the college for direct recruitment but there is material on the record, as pointed out by Sri R.S. Parihar, learned counsel for the Selection Board, that management has sent the requisition for the post of lecturer Psychology for filling it by direct recruitment by a scheduled caste category candidate. The copy of the said requisition was brought on record of the writ petition by counter affidavit filed on behalf of U.P. Secondary Education Service Selection Board. It is, thus, clear that committee of Management after converting the post of lecturer Psychology from promotion quota to direct recruitment quota for scheduled caste category sent requisition for direct recruitment. Sending the requisition for filling the post by direct recruitment by a scheduled caste category candidate without considering general category candidates available in the trained graduates grade fulfilling the eligibilities was contrary to law and cannot be sustained, consequently the selection made by U.P. Secondary Education Service Selection Board on the basis of said requisition by direct recruitment by scheduled caste candidate cannot be sustained. The selection of respondent No. 6 and sending her name by the U.P. Secondary Education Service Selection Board to the institution for appointment on the post of lecturer Psychology, thus, cannot be sustained and is here by quashed. The respondents are directed to consider the appellant for promotion on the post of lecturer Psychology in accordance with law. We, however, observe that respondent No. 6 having been selected by the Board as scheduled caste candidate, it is open for respondent No. 6 to represent to the U.P. Secondary Education Service Selection Board to adjust respondent No. 6 in any other institution according to her merit and preference.

In the result, the appeal is allowed. The judgment and order of learned single Judge dated 11th August. 2005 is set aside. The writ petition is allowed to the extent as indicated above,"

Against the said judgment, Civil Appeal No.5679 of 2006, Rachna Rani vs. State of U.P. had been filed, and therein on 08.12.2006, Hon'ble Apex Court has allowed Civil appeal, by setting aside the Division Bench judgment and ratifying the order of appointment of Single Judge as follows:

"Leave granted.

Heard learned counsel appearing o behalf of respective parties and perused the order passed by the High Court which is impugned in this appeal. The Government of U.P. in paragraph 7 of its counter affidavit has reproduced Rule 10 of the U.P. Secondary Education Service Selection Board Rules, 1998 which were framed under Section 35 of the said Act. It is also stated that the Rules came into force from the date of its publication in the official gazette, i.e., 13th July, 1998. for the sake of convenience, we also reproduce rule 10 as under:

"10. Source of recruitment- Recruitment to various categories of teachers:-

(a) Principal of an  By direct recruitment

    Intermediate College or

    Head Master of a High School

(b) Teachers of lecturers grade    (i) 50 per cent by direct

recruitment (ii) 50 per cent by promotion from amongst substantively appointed teachers of trained graduate grade

(c) Teachers of Trained   promotion from amongst          

    graduate grade          substantively appointed teachers of trained graduate grade

Provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment

Provided further that if in calculating respective percentage of posts under this rule there comes a fraction then the fraction of the post to be filled by direct recruitment shall be ignored and fraction of the post to be filled by promotion shall be increased to make it one post."

A perusal of the above rule will show that in case eligible candidates are not available to fill up the post in promotional quota then the same post can be filled up by direct recruitment. Since no Scheduled Caste candidate was available in L.T. Grade top be promoted to the post of lecturer hence direct recruitment was made to fill up the said post. The Rules have an overriding effect on the Government Order dated 12.07.1978. However, in this case, the high Court has relied upon the government Order dt. 12.07.1978 and allowed the writ petition filed by respondent No. 6 (Rachna Rani), the appellant herein. The High Court has failed to notice the rules framed under Section 35 of the said Act on 13.07.1998.the whole approach made by the High court is not correct. We, therefore, have no other option but top set aside the order passed by the Division Bench of the High Court and ratify the order of appointment of the learned single Judge made in favour of the appellant herein. The appeal stands allowed accordingly. No costs."

Thus, this is well settled now, that there is provision for reservation in promotion; There are roster points for promotion, and in the event of no one eligible for promotion from reserved category being available, then same cannot be offered to General Category candidate, and it has to be filled up by way of direct recruitment, from reserve category candidate.

Now at this juncture question if there are only three post of Class III employee in particular cadre of Class III employee, then can even in that contingency provisions of U.P. Public Services (Reservation for S.C., S.T. and O.B.C) Act 1994 can be made applicable or not is being adverted to.

Here three sanctioned posts of clerk is there in the institution  and it has been contended that if  27% of the vacancy is offered to O.B.C category candidate and 21% of the vacancy is to be offered to Scheduled caste category candidate then one post would go offered to O.B.C category candidate and one post would be offered to schedule case category candidate and thus, two post would be to reserved category candidate then in the said contingency ceiling limit of 50% will exceed as such where there are only three posts, the provision of U.P. Act No. 4 of 1994 can not be applied. Hon'ble Apex Court in the case of Dr. Chakradhar Paswan Vs. State of Bihar and other reported in 1988 AIR 959 has taken the view that reservation which would come under Art. 16(4), pre-supposes the availability of at least more than one post in that cadre. If there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post.  

"It is quite clear after the decision in Devadasans case that no reservation could be made under Art. 16(4) so as to create a monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Arts. 16(l) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Art. 16(4), pre-supposes the availability of at least more than one post in that cadre."

Thereafter again in the case of Post-Graduate Institute of Medical Education and Research, Chandigarh, v. Faculty Association and others reported in 1998 AIR SC 1767 Hon'ble Apex Court has taken the view that reservation which would come under Art. 16(4), pre-supposes the availability of at least more than one post in that cadre and by applying roster adequate representation can be provided to an incumbent in service. Relevant extract of the judgment is being quoted below:

"35. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent.

36. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bound to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.

37. Mr. Kapil Sibal has contended that in some higher echelon of service in educational and technical institution where special expertise is necessary to hold superior posts, like Professors and Readers there should not be reservation even if there are plurality of posts in such cadre as indicated in the majority view in Indra Sawhney's case (1992 AIR SCW 3682). It is, however, not necessary for us to decide the said contention for the purpose of disposal of these matters, where the question of reservation in single cadre post calls for decision.

38. We, therefore, approve the view taken in Chakradhar's case that there cannot be any reservation in a single post cadre and we do not approve the reasonings in Madhav's case (1997 AIR SCW 3113), Brij Lal Thakur's case and Bageswari Prasad's case (1995 Supp (1) SCC 432) upholding reservation in a single post cadre either directly or by device of rotation of roster point.

On the touch stone of the judgment quoted above, thus inevitable conclusion, is that  appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether class/group is adequately represented in the service. The cadre strength as a unit also ensures that upper ceiling limit of 50% is not violated. Further roster has to be post-specific and not vacancy based. Thus, by applying rule of roster in case there are more then one post the provision of U.P. Act No. 1994 can be pressed in to service.  

In the present case there are three posts of clerk (class III) out of which two posts have already been filled up by General category candidate and 3rd post under 21% quota of SC has been reserved by the authority concerned. Authority concerned in the present case has reserved the said post keeping in view the concept of reservation and keeping in mind that upper ceiling limit of 50% is not violated. Merely because there is provision, for providing reservation, in favour of OBC, category candidates up to the extent of 27%, that does not ipso facto means that post in question has been reserved automatically for "OBC" category candidates. Percentage of vacancies, as per which recruitments are to be made, has to be ensured in accordance with roster referred to in sub-section (5) in favour of persons belonging to SC/ST/OBC class of citizen, and while doing so the only thing which has to be kept in mind is that ceiling limit of 50% quantitative limitation is not breached.  Thus, authority is not at all wrong in reserving one post out of three post for Scheduled caste candidate and thus, action taken is within the domain and in consonance with the provisions of U.P. Act No. 4 of 1994 and ceiling limit of 50% in no way has been violated.    

In the present case post in question fell within 50% quota meant for promotion, post in question was reserved for Scheduled Caste category candidate, consequently petitioner not a reserved category candidate was outside the zone of consideration and any class IV employee from Schedule Caste category serving in the institution and fulfilling the requisite criteria was entitled to be considered for promotion. Under  U.P. Act No. 4 of 1994  public service has clearly been defined and as per Government Order dated 18.12.1990 if any post is reserved for promotion for reserved category candidate and no one is available in feeder cadre then said post  is to be converted into direct recruitment post, and can be filled up by way of direct recruitment. Thus, as per the said provision post in question meant for promotion to be filled up by reserved category candidate, in the absence of reserved category candidate can be filled up by way way of directed recruitment. In the present case petitioner is General category candidate working as class IV in the institution and no class IV employee eligible to be promoted was available from reserved category then exercise has been undertaken to fill up the said vacancy by way of direct recruitment. Petitioner's promotion had been turned down on 20.02.2002 and this fact was communicated to Manager of the College vide letter dated 12.06.2003. Pursuant to the order dated 12.06.2003, selection proceeding has been undertaken after advertising vacancy in daily 'Amar Ujala' on 18.08.2003, by Selection Committee wherein District Employment Officer, participated as nominee of District Magistrate, Aligarh alongwith other members wherein out of forty-one applicants, fifteen direct applicants and six whose name were sponsored by Employment Exchange, participated and thereafter on merit Leeladhar has been selected. Selection is based on merit.  

Consequently neither provision of reservation has been breached nor promotional quota has been breeched and selection has been made on merit.

Consequently present writ petition is dismissed.

No orders as to cost.

Dated:   15th June, 2007

  Dhruv

     


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.