Rajeev Shukla vs State Of U.P. And Others
2012 Latest Caselaw 2128 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 28
 
Case :- WRIT - A No. - 36617 of 2006
 
Petitioner :- Rajeev Shukla
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Manish Goyal
 
Respondent Counsel :- C.S.C.,D.K. Dwivedi,Dheeraj Kumar Shukla
 
		Connected with
 
Writ Petition No. 43081 of 2006
 
Petitioner :- Alok Kumar Pandey
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- K.K. Tripathi
 
Respondent Counsel :- C.S.C.,Manish Goel
 
Hon'ble B. Amit Sthalekar,J.

Since the controversy involved in both these writ petitions are identical, the claims are identical and the impugned order is identical, therefore, for the purpose of convenience, the same are being decided by a common judgment and order with the consent of the counsel for the petitioners.

This writ petition has been filed by the petitioners challenging the order dated 15.05.2006 whereby the single post in the promotee quota has been directed to be filled up by way of direct recruitment from a reserved category candidate.

The facts of the case in brief are that there is an institution known as G.N.K. Inter College (the College) Civil Lines, Kanpur Nagar. The said Institution is recognized and also receives grant-in-aid and is governed by the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder as well the U.P. Secondary Education Services Selection Board Act, 1982.

The petitioner Rajiv Shukla was initially appointed as an ad hoc Assistant Teacher in the LT Grade on 14.07.1992 on account of a vacancy created due to promotion of one Radha Krishna Shukla in the Lecturer Grade. The petitioner joined in the LT grade on 17.07.1992 and is working continuously since then. On 5.07.2003, the services of the petitioner were regularized on the post of Assistant Teacher LT grade w.e.f. 30.12.2000.

One Shiv Prasad Gupta, Lecturer in Commerce retired from service on 30.06.2003 on attaining the age of superannuation. In the resultant vacancy, the petitioner was directed to take charge of Classes 11 and 12 w.e.f. 1.07.2003 on officiating basis. By resolution of the Committee of Management dated 8.08.2003, it was resolved to promote the petitioner on the post of Lecturer Commerce and requisition in this regard was forwarded to the D.I.O.S., Kanpur Nagar, Kanpur on 21.08.2003. However, by the impugned order dated 15.05.2004, the D.I.O.S. has rejected the claim of the petitioner for promotion on the post of Lecturer (Commerce) on the ground that such a proposal does not fulfill the requirement of Rule14(3) of the U.P. Secondary Education Services Selection Board Rules, 1998. The second ground taken by the respondent No. 3 for rejecting the claim of the petitioner is that there were 10 posts in the promotee quota, out of which 9 posts are already filled up and only one post remains to be filled up. But since the quota of Scheduled Castes is not complete, therefore, the said post needs to be filled up by a Scheduled Caste candidate by converting the post in the promotee quota, into one for direct recruitment.

I have heard Sri Manish Goyal, learned counsel appearing for the petitioner, learned Standing Counsel appearing on behalf of respondent Nos. 1 to 3. List has been revised. None appears for respondent No. 1. The order is being dictated in open Court.

So far as the first ground taken for rejecting the claim of the petitioner for appointment as Lecturer (Commerce) is concerned, it may be noted that the petitioner had filed Writ Petition No. 76607 of 2005 challenging the rejection by the D.I.O.S. of the requisition sent by the Committee of Management, and this Court vide its order dated 19.12.2005 held as follows:

"The facts of the case as brought on record, demonstrate that the petitioner completed five years of his continuous/continuance service in September 2003. In this view of the matter the petitioner would be presumed to have acquired the qualification as on 1st July, 2004 and as such the petitioner can be considered as on date for promotion on the post in question. It has also been stated that the post has not been filled up by any other mode till date and in still available.

Let the Committee of Management, respondent No. 4 reconsider the promotion of the petitioner on the post in question in accordance with rules and forward the proposal to the competent authority for consideration afresh. The Committee of Management shall proceed to consider the claim of the petitioner without being influence by the order passed by the District Instpector of Schools dated 15.05.2004. A certified copy of this order shall be produced by the petitioner before the respondent No. 4, Committee of Management within 10 days for necessary action.

With the aforesaid observations the writ petition is disposed of."

Thus, this Court has already held that the petitioner would be presumed to have completed 5 years of continuous service on the post of Lecturer in September 2003 and would be presumed to have acquired a qualification as on 1st July, 2004. As such, his case for promotion can still be considered if the post is available and has not been filled up.

The impugned order dated 15.05.2006 has been passed in compliance of the order of this Court dated 19.12.2005. The ground taken in the said order for rejecting the claim of the petitioner is that in the promotee quota, there are 10 posts, out of which 9 posts are already filled up and only one post remains to be filled up. However, since the quota of Scheduled Castes is incomplete, the said single post of the promotee quota is to be converted into one for direct recruitment and will be filled up by a direct recruit candidate. The respondent No. 3 has referred to a G.O. dated 17.04.2003.

In the counter affidavit filed on behalf of the respondent Nos. 1, 2 and 3, it has not been disputed that there are 20 sanctioned posts out of which 10 posts are meant for promotion, 9 persons are working in the promotion quota, all of whom belong to the General Category and since the quota of Scheduled Castes is not complete, therefore, one post in the promotee is to be filled up by direct recruitment from a  reserved category candidate namely, SC candidate.

Similar matters have come up before this Court earlier and this Court while interpreting an earlier Circular of  December 1990 (which is also been referred to in the Circular of 17.4.2003), has held that a post available in the promotee quota cannot be converted into a post available for direct recruitment. Even if there is a short fall in the reserved category the said post cannot be filled up by direct recruitment to complete the short fall within the reserved category.

The learned counsel for the petitioner has relied upon a decision of this Court reported in (2004) 1 E.S.C. (Alld.) 324, Ramesh Chandra Yadav Vs. Director Education U.P. (Madhyamik Allahabad) and others. The relevant paragraph of the said judgment is quoted hereinbelow:

"I am of the view that since the vacancy has been caused from the promotion quota and since there is a 50 per cent quota for promotion of Class IV employees under the Intermediate Education Act and Regulations, the vacancy in question is to be filled up by promotion only. The District Inspector of Schools is not authorized under any Act to convert the post of promotion quota into direct recruit quota. The District Inspector of Schools has taken plea that the provisions of the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribe and other Backward Classes) Act, 1994 is applicable and no post is being occupied by the Scheduled Caste candidate in the category of clerks, this post is to be filled up by Scheduled Caste candidate only."

In another case reported in 2005 ALJ 3828, Sunita Bhagat Versus State of U.P. and others, a Division Bench of this Court has held:

"It is, thus, clear that the Committee of Management after converting the post of Lecturer (Psychology) from promotion quota to direct recruitment quota for scheduled caste category sent 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 and is hereby quashed................."

Thus, in view of the consistent view taken by this Court, the respondents were completely in error in converting the solitary post of the promotee quota into one for direct recruitment only so as to complete the quota of SC candidate, and therefore, the order dated 15.05.2006 is manifestly illegal and contrary to law and is liable to be quashed. It is accordingly quashed.

The writ petition is allowed. A direction is issued to the respondent No. 3 to consider the petitioner for promotion on the post of Lecturer(Commerce) in the Institution in question against the single post of promotee quota within a period of one month from the date, a certified copy this order is received by him.

In the connected Writ Petition No. 43081 of 2006, the petitioner Alok Kumar Pandey is challenging the same order dated 15.05.2006 and he is also seeking a direction to be given promotion on the post of Lecturer (Commerce) against the 50 per cent promotee Quota.

The case of the petitioner is that he was appointed as ad hoc LT grade teacher  on 12.08.1991 in the Institution. His services were regularized w.e.f. 30.12.2000. He is also a contender for promotion to the post of Lecturer (Commerce). His contention is that he is senior to respondent No. 5, Rajiv Shukla, who is the petitioner of Writ Petition No. 36617 of 2006 of 2006.

None appears for the petitioner, although, the list has been revised. Sri Manish Goyal for the respondent No. 5 and the learned Standing Counsel for respondents 1, 2 and 3 have been heard. The matter is being taken up for disposal since the issue involved in both the writ petitions are identical, the claims are identical and the impugned order is identical.

In the counter affidavit filed by the respondent No. 5, the seniority list has been filed as Annexure 7 to the said counter affidavit at page 37 of the paper-book. From a perusal of the seniority list, it will be seen that the name of the respondent No. 5 occurs at serial No. 11 but the name of Sri Alok Kumar Pandey does not find mention at all. His name however, appears/occurs at page 38 after the name of the respondent No. 5. In para 15 of the counter affidavit of the respondent No. 5, there is a categorical averment that the name of respondent No. 5, Rajiv Shukla is at the serial No. 7 of the seniority list, whereas the name of the petitioner Alok Pandey is at serial No. 16. These averments have not been categorically denied in Para 11 of the rejoinder affidavit filed by Alok Kumar Pandey. Para 11 of the rejoinder affidavit reads as follows:

"That the contents of paragraph nos. 15 of the counter affidavit are not correct hence denied. However, it is submitted that the petitioner is senior to the respondent No. 5 and the petitioner's claim of promotion isfirst prior to claim of the respondent No. 5. And petitioner possessed all the requisite qualification for promotion of Commerce Lecturer i.e. M. Com., B. Ed. and length of the petition is higher than the respondent No. 5 and the petitioner is teaching the Commerce in XIth and XIIth Classes from last three years."

Thus, from the records, it is apparent that the petitioner Alok Kumar Pandey is junior to the respondent No. 5 Rajeev Shukla.

Under these circumstances, there is absolutely no doubt that the petitioner Alok Kumar Pandey was junior to the respondent No. 5 and therefore I find no merit in this writ petition. So far as his claim for promotion against single post for Lecturer (Commerce) in the promotee quota is concerned, the said Writ Petition No. 43081 of 2006 is accordingly dismissed.

Order Date :- 24.5.2012

Arun K. Singh