Krishna Chandra Rai vs State Of U.P. Thru' Secretary ...
2012 Latest Caselaw 5516 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
1.	Heard learned counsel for the petitioner, learned Standing Counsel, learned counsel for the respondent no. 5 and perused the record.

2. The present petition has been preferred with the prayer to issue writ of certiorari quashing the order dated 21.3.2007 passed by Regional Joint Director of Education(Annexure No. 13 to the Writ Petition), rejecting the claim of the petitioner for promotion to the post of Lecturer under the promotional quota of 50%. Further prayer is to issue writ of mandamus commanding the respondents to grant approval to the petitioner as Civics Lecturer and to pay regular monthly salary on the post of Lecturer.

3. Brief facts of the case are that Sarvodaya Kisan Inter College, Kaudiram(hereinafter referred to as "the institution") is a recognised institution and hence the same is governed by U.P. Intermediate Education Act, 1921, U.P. Act No. 24 of 1971 and U.P. Act No. 5 of 1982. The petitioner was appointed as Assistant Teacher in L.T.Grade in the institution namely Vikram Inter College, Mohammadpur, Latghat, District Azamgarh on 17.1.1972. The appointment of the petitioner was also approved by the authorities concerned. Subsequently, the petitioner was mutually transferred in the institution and after he was relieved from Vikram Inter College, he joined the institution on 18.10.1984 as L.T.Grade Assistant Teacher in pursuance of the order dated 8.10.1984 passed by the District Inspector of Schools ( in short "D.I.O.S."). In the said institution, there are 16 sanctioned posts of Lecturers. Since 50% posts of Lecturers are under the promotional quota, out of 16 posts, 8 Lecturers are to be appointed by promotion. The petitioner was senior most teacher and in the seniority list, he was placed at serial no. 2 and respondent no. 5 Rakesh Kumar was at serial no. 22. In the institution, post of Lecturer in Chemistry fell vacant after retirement of Sri Ramesh Prasad Pandey on 30.6.2003. After his retirement, the requisition was sent by the Committee of Management in the year 2003 to the U.P. Secondary Education Service Selection Board(in short "the Board") to fill the vacancy by Scheduled Caste candidate by direct recruitment since no Scheduled Caste candidate was eligible for promotion on the post of Chemistry Lecturer. Subsequently, another post of Lecturer fell vacant after retirement of Sri Devdutt Singh on 30.6.2006. Respondent no. 5 Rakesh Kumar was selected by the Board as Assistant Teacher in L.T.Grade against Scheduled Caste vacancy to join the institution in the month of January, 1998. In view of the U.P. Act No. 4 of 1994, 21% Scheduled Caste candidates are to be appointed and promoted. Out of 8 posts under promotional quota, the number for Scheduled Caste candidate comes to about 1.56 hence for promotional quota, there would be only one post of Scheduled Caste candidate because if it is treated as 2 posts then percentage of 21% would increase which is not permissible. The petitioner who was claiming promotion as Lecturer in Civics filed Writ Petition No. 36668 of 2006 which was dismissed on 14.7.2006 being premature. Subsequently, Writ Petition No. 55264 of 2006 was filed seeking promotion. The Writ Petition was finally disposed of by judgment and order dated 5.10.2006 by which the Joint Director of Education was directed to decide controversy regarding promotion of the petitioner in accordance with Rule 14 of U.P. Secondary Education Service Selection Board Rules, 1998 (hereinafter referred to as "Rules 1998"). The Committee of Management passed a resolution on 25.10.2006 granting promotion to the petitioner as Civics Lecturer. Copy of the resolution is Annexure No. 4 to the Writ Petition. The paper regarding promotion of the petitioner was forwarded to the D.I.O.S. by letter/communication dated 9.11.2006 (Annexure No. 5 to the Writ Petition), however no order was passed on that recommendation. The D.I.O.S. forwarded the entire paper to the Joint Director of Education on 8.3.2007. Representation of the petitioner was rejected by impugned order 21.3.2007 passed by Joint Director of Education, Gorakhpur Region Gorakhpur holding that since out of 8 promotional posts, 7 candidates who were working were of general category when the recommendation was made, hence it is held that respondent no. 5 was eligible for promotion and accordingly the direction was issued to pass resolution.

4. Learned counsel for the petitioner submitted that in view the U.P. Act No.4 of 1994, 21% posts are reserved for Scheduled Caste and even if the entire posts of 16 lecturers are considered only three Scheduled Caste candidates can be appointed under the reserved category. Two lecturers namely, Rudra Narain Rao and Smt. Indu Devi belonging to Scheduled Caste category were working in the institution and for third reserved category for Scheduled Caste requisition was sent by the Committee of Management to the Board through D.I.O.S. to fill the vacancy of lecturer since no suitable and eligible candidate for promotion on the post of Chemistry Lecturer was available. Hence, by recommendation for promotion of respondent no. 5 in the reserve category the promotional quota will increase and the same would be more than 21% which is against the provision. He further submitted that when the post of reserve category candidate cannot be filled due to non availability of eligible candidate the same can be filled by other category candidates. However, instead of promoting the other category candidate when the post of Chemistry Lecturer occurred, the requisition was sent for that post on the reserve category for direct recruitment. He also submitted that when Scheduled Caste candidate was not available for promotion in promotional quota and the requisition was sent for appointment of Scheduled Caste candidate then subsequently when vacancy of lecturer occurred and if the requisition is made for the Scheduled Caste candidate, it amounts increasing the reserve category beyond 21%. Hence, the impugned order is liable to be set aside. The petitioner was entitled to be promoted on the post of Lecturer.

5. Learned Standing Counsel and learned counsel for respondent no. 5 opposed the aforesaid prayer. It was submitted that there were 8 posts of Lecturers under the promotional quota of 50%, however, all the 7 lecturers were of general category and no lecturer was working under the reserved category of Scheduled Caste hence, rightly representation of the petitioner was rejected and the direction was issued by the respondent no. 2, Regional Joint Director of Eduction, Gorakhpur to consider the promotion of respondent no. 5 Rakesh Kumar who is in Scheduled Caste category because one post to be filled under 21% quota for Scheduled Caste.

6. Learned counsel for the respondent no. 5 further submitted that if the requisition sent to the Selection Board remains pending or no appointment is made by the Selection Board then no candidate would be appointed under the promotional quota from the reserved category. Hence, the impugned order was rightly passed and no interference is required.

7. Considered the submissions of learned counsel for the parties. It is not disputed that two Scheduled Caste candidates were working on the basis of direct recruitment in lecturer grade and for the third post when one vacancy under promotional quota occurred and when Scheduled Caste candidate was not available, the recommendation was made for recruitment of Scheduled Caste candidate because the post which fell vacant was for the Scheduled Castes candidate. Now, by impugned order the recommendation is for promotion of another scheduled castes candidate respondent no.5 on the ground that no candidate of the reserved category was working on the post of lecturer. Under Rule 10 of the Rules 1998, the procedure for recruitment is provided. Rule 10 source of recruitment is reproduced herein below:-

"10. Source of recruitment- Recruitment to various categories of teachers shall be made from the following sources :

 
(a) Principal of an Intermediate College		By direct recruitment
 
or Headmaster of a High School             
 
(b) Teachers of lecturer's grade     (i) 50 per cent by direct recruitment;
 
					  (ii) 50 per cent by promotion from 					   amongst substantively appointed 					   teachers of the trained graduates 					    grade.
 
(c) Teachers of trained        	 (i) 100 per cent by direct recruitment
 
    graduates grade 			   except the category of institutions 					    mentioned below in 2(ii) ;
 
					  (ii) Those Intermediate colleges and High Schools in which teachers of attached primary section are getting salary under provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, 75 per cent posts shall be filled by direct recruitment and the remaining 25 per cent posts shall be filled by promotion from amongst those trained graduate teachers of attached primary section who have completed 5 years of satisfactory service:
 
	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 percentages of posts under this rule, there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post."
 

8. In view of Rule 10 the 50% recruitment would be by promotion from amongst the substantively appointed teachers of the Trained Graduates Grade provided that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the post may be filled in by direct recruitment. In the case of Smt. Sunita Bhagat 2005 (61) ALR 548, the Division Bench of this Court held that, "when a post reserved for any reserve category candidate cannot be filled up due to non availability of eligible candidates the same has to be filled up by any other reserved category candidate whose quota is unfilled and in the event of non availability of any reserve category candidate the post can be filled up by general category candidate, even in view of the Clause 5 of the Government Order dated 12th July, 1978. It was further held that above clause implies a duty on the authorities to consider the case of Trained Graduate Grade Teachers for promotion of general category in the event no eligible candidate of any reserved category is available".

9. In the case of Rachna Rani Vs. State of U.P. and others in Civil Appeal No. 5679 of 2006 arising out of S.L.P. (C) No. 23806 of 2005, it was held "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 to 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 dated 12.7.1978 and allowed the Writ Petition filed by respondent no. 6 (Rachna Rani). The High Court has failed to notice the Rules framed under Section 35 of the said Act on 13.7.1978. The whole approach made by the High Court is not correct."

10. Hence in case of Rachna Rani, the Supreme Court overruled judgment of the Division Bench of this Court in case of Smt. Sunita Bhagat. Subsequently, relying upon the Supreme Court judgment in Rachna Rani (supra), the dispute was considered in the case of Punni Lal Vs. State of U.P. 2010 (79) ALR 94 and it was held that according to the Supreme Court judgement in Rachna Rani case " if an eligible and suitable candidate for promotion is not available and the post is reserved for a particular category, the same cannot be filled in by a general category candidate but direct recruitment has to be made confining it to the category for which the post was kept reserved meaning thereby that the post in question, in absence of any suitable candidate for promotion of scheduled caste candidate, could have been filled in by direct recruitment but keeping it reserved for scheduled caste."

11. In the present case, when the vacancy of Lecturer in Chemistry occurred on 30.6.2003 and no suitable reserved category candidate of Scheduled Caste was available for promotion then in view of Rule 10 of Rules 1998, the requisition was sent to fill up the post by scheduled caste by direct recruitment. Subsequently, when the vacancy of lecturer in Civics fell vacant on 30.6.2006 again the recommendation is being made for promotion of the scheduled caste candidate. There is no dispute that in view of Rule 10 of Rules 1998, 50% posts of lecturers has to be filled in by promotion and hence out of 16, there are 8 posts of lecturers which has to be filled in by promotion. Out of 8 posts, 21 % posts has to be filled in by reserved category candidates. In the case of Heera Lal Vs. State of U.P. 2010-ADJ-6-1, it was held by Full Bench of this Court that the reservation of 21% for promotion cannot be increased hence if there is less than 5 posts available for promotion, the reservation to a scheduled caste category cannot be granted. In view of the aforesaid judgement, if there are 8 posts under the promotional quota of 50% then 21% out of 8 posts is for reserved category. 21% of reserved category is about 1.56 less than 2 and if it is treated as two posts for reserved category then 21% quota under U.P.Act No. 4 of 1994 will exceed, which is not permissible. Hence, only one scheduled caste candidate has to be promoted under the reserved category, other category candidate can be promoted on the basis of seniority in general category. When the post of reserve category of one lecturer fell vacant, the requisition was made for appointment of Scheduled Caste candidate and now when again the post fell vacant in general category on this ground the recommendation was made that no reserved category candidate was working under the promotional quota, though under direct recruitment, two Scheduled Caste candidates were working. If for one post of Scheduled Caste in promotion quota, recommendation was for one Scheduled Caste candidate by direct recruitment, when no Scheduled Caste candidate was available for promotion and subsequently appointment of the other candidate of Scheduled Caste by promotion then in view of Rule 10 of Rules 1998 read with U.P. Act No. 4 of 1994, the 21% reserved category for Scheduled Caste candidate will exceed.

12. Now, for the appointment which were to be made in future, in view of the judgment of the Apex Court, the notification dated 7th May, 2012 was issued by the State of U.P. deleting the provision of reservation in promotion as provided in U.P. Act 1994.

13. In view of the aforesaid discussion, the impugned order dated 21.3.2007 being against the provision of Rule 10 of Rules 1998 read with U.P. Act No. 4 of 1994 passed by Regional Joint Director of Education(Annexure No. 13 to the Writ Petition) is hereby quashed. The respondents no. 2 and 3 are directed to consider the claim of the petitioner for promotion as Lecturer, expeditiously, preferably within two months after filing the certified copy of this order, following the procedure as prescribed under the Act No. 5 of 1982 and Rules 1998 in accordance with law.

14. Accordingly, the present petition is allowed.

15. No order as to cost.