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HARPAL SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Harpal Singh v. State Of U.P. And Others - WRIT - A No. 17176 of 2004 [2007] RD-AH 989 (16 January 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

Reserved

Civil Misc. Writ Petition No.17176 of 2004

Har Pal Singh                    Vs.               State of U.P. and others

........

Hon'ble Ran Vijai Singh J.

The petitioner (who was earlier appointed as peon in Kisan Inter College, Mora Tilfara District Saharanpur) claims his promotion on the post of clerk under 50% promotional quota in view of Chapter 3 Regulation 2 of the Regulations framed under U.P. intermediate Education Act. His case is that he has been promoted on 2.2.2003 by the Committee of Management on the post of Clerk and the papers seeking approval have been sent by the Committee of Management on 31.5.2003. It is also stated that the other  class IV employees have given their no objection to the promotion of the petitioner, but inspite of that the D.I.O.S. has refused to give financial concurrence to the promotion of the petitioner vide order dated  24.12.2003, hence the present writ petition.

This writ petition has been filed with the following prayers:

a) to issue a writ, order or direction in the nature of certiorari quashing the order dated 24.12.2003 passed by the respondent no.2(Annexure-7 to the writ petition).

b) to issue, a writ, order or direction in the nature of mandamus commanding the respondent District Inspector of Schools Saharanpur to grant financial sanction to the promotion of the petitioner as Class-III employee in Kisan Inter College, Mora Tilfara District Saharanpur with effect from the date of his appointment and to make payment of salary to the petitioner with arrears on that account so that justice be done.

c) to issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

d) to award cost of the writ petition to the petitioner.

It is not in dispute that Kisan Inter College, Mora Tilfara District Saharanpur is a recognized aided Inter Mediate College under the U.P. Intermediate Education Act 1921 and the conditions of services are governed under the U.P. Intermediate Education Act 1921(hereinafter referred to as the Act 1921) and the regulations framed thereunder. It is also not in dispute  that the payment of the salaries of the teachers and other employees are governed under the provisions of U.P. High School and Intermediate (Payment of salaries of teachers and other employees) Act 1971.

It is stated that there are three sanctioned posts of clerk including

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the post of Head Clerk in the aforesaid institution and there are eight sanctioned post of class four employees  detail of which is given as under;

Sl.

no.

Name

post

Date of birth

Appont. date

Edu.Qualification

Caste

Signature

4.

Mahendra Singh

Chaukidar

20.10.52

18.10.69

Prathma hindi Sahitya Sammalan prayag

balmik

Sd/ill.

5.

Gopal Singh

Daftri

1.12.50

1.8.72

8th pass

Jogi

Gopal Singh

6.

Mahipal Singh

Chaprasi

1.7.56

26.9.80

8th pass

Badhai  

Mahipal Singh

7.

Mahipal Singh

 "

2.1.62

26.9.80

Class-1 pass

Darji

Mahipal

8.

Harpal Singh

 "

1.1.57

10.3.86

12th pass

Rajpoot

Harpal Singh

9.

Hukum Singh

 "

1.10.65

10.3.86

6th pass

Rajpoot

Hukum Singh

10.

Sukhpal Singh

 "

3.2.68

19.12.87

9th pass

Balmiki

Sukhpal Singh

11.

Mukesh Kumar

 "

1.10.79

15.9.98

12th pass

Rajpoot

Sig.Ill.

The case of the petitioner is that the Head Clerk Sri Bhoopal Singh retired on 31.12.2002 and in his place one Chandra Pal Singh clerk was promoted on the post of Head Clerk. Consequently a vacancy of clerk has fallen vacant  and the Committee of Management passed a resolution  that since there is no other senior, eligible qualified class four employee for promotion on the post of clerk except the petitioner,therefore, he be promoted on the post of clerk and thereafter an appointment letter was issued to the petitioner on 2.2.2003. Learned counsel for the petitioner has further submitted that amongst three posts of clerk all earlier persons have been appointed directly and no clerk is working under promotional quota, therefore, the post which has fallen vacant after promotion of Chandra Pal Singh has been filled up by promotion.

For the purpose of solving the controversy involved in this case the Regulation 2 of Chapter III framed under U.P. Intermediate Education Act is material  and  quoted below:

          2.(1) fdlh laLFkk esa fu;qfDr gsrq fyfid ,oa prqFkZ oxhZ; deZpkfj;ksa dks U;wure 'kSf{kd ;ksX;rk ogh gksxh tks jktdh; mPPrj ek/;fed fc>ky;ks ds led{kh; deZpkfj;ks ds fy;s le; le; ij fu/kkZfjr dh xbZ gks

         2   iz/kku fyfid ,oa fyfid Js.kh ds Lohdqr inks ds dwqy la[;k dk ipkl izfr'kr laLFkk es dk;Zjr fyfidksa ,oa prqFkZ Js.kh deZpkfj;ks es ls inksUufr nqokjk Hkjk tk;saxk ;fn deZpkjh in gsrq fu/kkZfjr

3

vgZrk j[krk gks rFkk og vkxs in ij 5 o"kZ  dh vfcjy ekSfyd lsok dj pqdk gks rFkk mudk lsok vfoys[k vPNk gks inksUufr vuqi;qDr dks NksM dj T;s"Brk ds vk/kkj ij dh tk;sxh

        bl lEcU/k es ;fn dksbZ deZpkjh izcU/k lfefrds fdlh fu.kZ; dk vkns'k lsO;ofLFkr gks rks og mlds fcjn?k           ,sls fu.kZ; ;k vkns'k ds fnukad ls nks lIrkg ds Hkhrj fujh{kd dks vH;kosnu dj ldrk gS fujh{kd   ,sls vH;kosnu ij ,sls vkns'k ns ldrk gS ftUgsa og mfpr le>s  fujh{kd dk fu.kZ; vfUre gksxk vkSj    izcU/kkf/kdkj 'kh?kz d;kZfUor fd;k tk;sxk

      fVIi.kh-. ipkl izfr'kr inksa dh lax.kuk djus es vk/ks ls de Hkkx dks NksM fn;k tk;sxk vkSj vk/ks ;k vk/ks ls   vf/kd Hkkx dks ,d le>k tk;sxk

From perusal of the above provision it is clear that the Statute provides 50% of total sanctioned strength of Clerk including Head clerk should be filled up by promotion. The note to the Regulation 2 further provides that while computing 50% of the post the number less than half should be ignored and half or more than half should be treated as one. In the present case since there are three posts of clerks therefore, the quota of promotion according to Regulation 2 comes to 1.5 andby virtue of the  note to regulation 2 it will be counted two.( The same method of counting of the post has been mentioned in G.O. dated 12.7.78 which is detailed in the later part of the judgment)

The D.I.O.S. has refused to grant approval to the petitioner's promotion on the ground that quota of Schedule caste is not filled up.

I have heard Sri J.K. Shishodia learned counsel for the petitioner and learned Standing Counsel for the State respondents. No body has turned up on behalf of the Committee of Management inspite of service of the notice.

The counsel for the petitioner has submitted that there are only two posts of clerk in the Institution which can be filled up by way of promotion  and as per the percentage of reservation of schedule caste only 21% reservation can be given to the schedule caste candidate. Here in the present case since there are only two vacancies and in case the vacancy in question is treated to be reserved for schedule caste then the percentage will increase to 50% and that is not permissible under the constitutional scheme.

Learned counsel for the petitioner has further submitted that even if it is treated that the vacancy in question has to be filled up by schedule caste candidate/reserved category candidate in that case also no senior person  above the petitioner belonging to the reserve category is qualified to be promoted on the post of clerk. It is settled that in case of promotional quota if the reserve category candidates are not available then the vacancy  be filled  up  from amongst the  candidates belonging to general category.

Learned Standing Counsel appearing for State respondents has submitted that since the schedule caste quota is not filled up, therefore, it

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was incumbent upon the Committee of Management to fill up that post from amongst the schedule caste candidates who are available in the Institution otherwise also not filling up the schedule caste quota and for that purpose quota of any reserve category is punishable under the provisions of Act No.4 of 1994.

The following questions will arise for deciding the present controversy:

1.Whether under 21% reservation of schedule caste the post which has fallen vacant can be filled up by schedule caste candidate?

2.Whether in absence of reserve category candidate the promotional vacancy of clerk in question can be filled up by a candidate belonging to the general category?

The position of reservation as contained in the Act of 1994 is quoted below:

(a) in the case of Scheduled Castes      twenty-one per cent;

(b) in the case of Scheduled Tribes       two percent;

( c ) in the case of other backward

classes of citizens                            twenty-seven per cent;

For considering the first question it has to be seen whether the post of clerk which has fallen vacant due to promotion of Sri Chandra Pal Singh on the post of Head Clerk can be reserved for schedule caste candidate under the promotional quota. As per fact of the present case, there are only two posts which can be filled up by way of promotion from Class IV to Class III and out of two , one has fallen vacant. So far as the reservation of schedule caste candidate is concerned i.e. 21% meaning thereby if there are more than 4.7 (5) vacancies in that case one post can be filled up from amongst the persons belonging to the schedule caste. In other words the vacancy available under 21% for two posts will come to .42 i.e. less than .5 and as per note of Regulation 2 of Chapter 3 no reservation can be given. If the above position is not accepted then the quota of schedule caste will increase more than 21% and that is not permissible otherwise also it will increase more than 50% if it is provided to the schedule caste  and that is also not permissible under the constitutional scheme, as held by Apex Court in the case of State of   U.P. Vs. Pavan Kumar Tiwari reported in JT 2005(1) S.C. 150.  Even the roster cannot be applied as the vacancies are less than five.

Coming to the second question it has to be seen whether in absence of reserve class candidate the post can be filled up by the general category candidate or not. In this regard the rules/ government order has been

5

framed/ issued on 12.7.78 which is applicable to the present type of institution and  Class III and Class IV employees are also covered under the Rule. The aforesaid rule/ government order is reproduced below:

lgk;rk izkIr v'kkldh; lgk;rk izkIr m-ek- fcn;ky;ks es fu;wqfDr gsrq vuqlwfpr tkfr;ksa tutkfr;ksa ,oa fiNMs cxksZa dks vkj{k.k iznku djus gsrq fu;ekoyh

(!* izR;sd v'kkldh; lgk;rk izkIr m-ek- fcn;ky;( ftls vkxs fcn;ky; dgk x;k gS es v/;kidksa ( ftlds vUrxZr laLFkk dk iz/kku lfEefyr ugh gS-  ds izR;sd indze ds inksa ij fuEukafdr oxkasZ ds ,sls O;fDr;ksa ds fy;s  tks fd mDr 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               ---------  18 izfr'kr

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

fiNMs oxZ                  -----------  15 izfr'kr

     (ftudh lwph ifjf'k"V d  es nh gqbZ  ds fy;s

izfrcU/k ;g gS fd fdlh Hkh in dze ds inkas es fdlh Hkh oxZ ds vkjf{kr inksa dh x.kuk gsrq vk/ks ls de Hkkx NksM fn;k tkosxk! vk/kk ;k vk/ks ls vf/kd Hkkx dks ,d fxuk tk;xk!

2- ;fn fdlh fcn;ky; es fdlh le; es fdlh indze ds v/;kidksa ds inks ij mijksDr oxksZaa ds v/;kidksa dh la[;k tu oxksZ ds fy;s fu/kkZfjr izfr'kr ls de gksxh rks tc rd ml oxZ ds fy;s mDr fu/kkZfjr dksVk iw.kZ u gks tk; igyh fjfDr rFkk izR;sd ,dkUrj fjfDr;ka -------------  -------------------  ----------------- pkgs og inksUufrls Hkjh tk; vFkok lh/kh HkrhZ ls-- vkjf{kr le>h tkosxh !

3-  fdlh oxZ fc'ks"k ds U;w;ure ;ksX;rk/kkjh vH;fFkZ;ks dh miyC/krk ds v/khu jgrs gq;s------

  d-  tgka mi;ZqDr cxksZa es ls fdlh ,d oxZ dk fu/kkZfjr dksVk viq.kZ gks ogka vkjf{kr inksa dks mlh oxZ     fc'ks"k ds vH;fFkZ;ksa ls Hkjk tkosxk vkSj

          [k-   tgka mi;qZDr oxksZaa es ls ,d ls vf/kd cxksZa dk fu/kkZfjr dksVk viw.kZ gks ogka vkjf{kr inksa dks ml izR;sd oxZ ds vH;fFkZ;ks ls mlh dze es Hkjk tkosxk ftl dze es bu cxksZa dk mYys[k fu;e  1 es fn;k gqvk gS! ;g izfdz;k rc rd nksgjkbZ tkrh jgsxh tc rd fd lHkh vkjf{kr in Hkj u tk;s!

4-   ;fn mi;qZDr oxksZa es 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 es vkjf{kr in dh fjfDr ml oxZ ds vH;FkhZ ls ftldk dksVk viw.kZ gks Hkjh tk;sxh!

5-    tgka mi;qZDr oxksZa es ls dksbZ Hkh ,slk oxZ u gks ftldk dksVk viw.kZ gks vFkok tgka dksbZ ,slk oxZ gks ftldk dksVk viw.kZ gks fdUrq ml oxZ dk dksbZ fu/kkZfjr ;ksX;rk/kkjh vH;FkhZ miyC/k u gks rks ml n'kk es fjfDr lkekU; vH;fFkZ;ks ls Hkjh tkosxh !

6-    tgka lh/kh HkrhZ ls Hkjk tkus okyk dksbZ in bues ls fdlh Hkh oxZ ds fy;s vkjf{kr gks rk ml in ds fcKkiu es bl ckr dk vo';eso mYys[k fd;k tkosxk fd og in ml oxZ ds fy;s vkjf{kr gS

7-     mijksDr O;oLFkk fyfidh; rFkk prqFkZ Js.kh deZpkfj;ks ds lEcU/k es Hkh ykxw gksxh!

8-     ;s fu;e mu inksa ds lEcU/k es ykxw ugh gksxs ftu ij mRrj izns'k gkbZLdwy rFkk bUVj dkyst

^vkjf{kr lewg v/;kid^ v/;kns'k 1978 ds vUrxZr vkjf{kr lewg v/;kidksa dk  vkesyu fd;k tk;sxk !

   

   ( The percentage of reservation has changed after  commencement     of the Act No.4 of 1994)

From perusal of Clause IV and V it is clear that in case of non availability of eligible candidate from amongst the reserve class candidate the post be filled up from the  candidates belonging to general category.

The above Government Order/Rule dated 12.7.78 has been modified by the government order dated 26.4.83 in which Clause 5 is untouched and the same is reproduced below:

"5. Jahan Uparyukta vargon mein se koi bhi aisa varg na ho jiska kota      apurna ho, athwa jahan koi aisa varg ho jiska kota apurna ho      kintu us varg ka kaoi nirdharit yogyatadhari abhayarti      uplabdha na ho, to aisi dasha mein wah rikti samanya      abhyarthiyon se bhari jayegi."

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This question has  came up before this Court for consideration in the year 1981 and Division Bench of this Hon'ble court in case of Krishna Pal Singh Vs. Government of U.P. and others reported in 1981 UPLBEC 521 has held that since Government Order 1978 has been issued under section 9(4) U.P. Intermediate Education Act, therefore, it must be treated as Regulation. In this case reserved category candidate was not available for filling up the promotional vacancy and the selection was held by the Commission of a scheduled caste candidate by direct recruitment. This selection was quashed by the Division Bench of this Court by making following observations:

" 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 Services Selection Board on the basis of the 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 Services Selection Board to the institution for appointment on the post of lecturer psychology, thus, cannot be sustained and is hereby quashed."

The above proposition has been followed by  two Hon'ble Judges sitting singly In the case of Jai Kumar Singh Vs. D.I.O.S. and others reported in 2001(2) UPLBEC page 1571 and in case of  Arjun Pandey Vs. State of U.P. & others reported in 2006(3) LBESR 382.

The same proposition has been laid down by another Division Bench of this Court in the case of (Smt.)Sunita Bhagat Vs. State of U.P. and others reported in 2005(61) ALR 548.

It is thus clear that in the case of non availability of reserve category candidate belonging to one category in promotional quota the same may be filled up from amongst another reserve category candidate and in case of non availability of any reserve category candidate the vacancy should be filled up from amongst the candidates belonging to general category. In the present case the approval has been refused on the ground that there was no scheduled caste clerk working in the Institution, therefore, the persons belonging to the scheduled caste should have been promoted. As per assertion made in the writ petition, there was no scheduled caste candidate elegible for promotion on the post of clerk in the institution and this fact has not been denied in the counter affidavit filed by the State respondent. I have not examined the question from this point of view whether in the promotional quota there can be any reservation of the candidate belonging to O.B.C or not. However, according to the case of the petitioner as

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mentioned in the writ petition even the O.B.C. candidate is not available for promotion. The DIOS has not examined the question of approval from this angle also.

In view of the above discussions, it is apparent that the order passed by DIOS is illegal and without application of mind. Therefore, the writ petition succeeds and is allowed. The order dated 24.12.2003 passed by D.I.O.S. is quashed. The matter is sent back to the DIOS to reconsider the question of approval of petitioner's appointment in accordance with law in view of the observations made in the judgment.

The DIOS is directed to take fresh decision within a period of two months from the date of production of certified copy of the order of this Court. However, it will be open to the DIOS to hear all the concerned persons including the Committee of Management and other interested persons like complainant etc.

Dt.16.1.2007

Hsc/


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

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