Ashok Kumar vs State Of U.P. Thru' Secy Education ...
2014 Latest Caselaw 2098 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
(Judgment reserved on 16.05.2014)
 
(Judgment delivered on 28.05.2014)
 

 

 

 

 

 

 

 

 
Case :- WRIT - A No. - 4024 of 2005
 

 
Petitioner :- Ashok Kumar
 
Respondent :- State Of U.P. Thru' Secy Education Madhyamik And Others
 
Counsel for Petitioner :- Khalil Ahmad Ansari,M.K.Tiwari
 
Counsel for Respondent :- C.S.C.,C.P. Singh
 

 

 

 
Hon'ble Rajan Roy,J.

Heard learned counsel for the petitioner and the learned standing counsel for the respondents No.1 & 2. None appeared for the respondent No.4 despite the list of cases having been revised.

The challenge herein is to a decision of the District Inspector of Schools, Bijnore dated 28.12.2004, wherein the claim of the petitioner for being considered for promotion to the class-III posts under the provisions of the U.P. Intermediate Education Act, 1921 and the Regulations made thereunder has been declined holding that the post in question is to be filled up by promotion of a schedule caste, class-IV employee by applying the roster as per the G.O. dated 10.10.1994 treating it to be reserved for the said category.

The petitioner as also the respondent No.4 were appointed on class-IV posts in the college of the respondent No.3. Under the provisions of Regulation 2(2) of Chapter-III made under the Act of 1921, a channel of promotion is provided for class-IV employees to the class-III posts on the basis of seniority subject to regulation of unfit. Undisputedly, in the institution in question, there are only three sanctioned posts of junior clerk and one post of senior clerk/ head clerk. One post of junior clerk fell vacant on 31.07.2004 on account of retirement of the incumbent on attaining the age of superannuation. The remaining two posts of junior clerk were occupied by Sri Ashok Kumar (O.B.C.-direct recruit) and Sri Rakesh Kumar (Genral-promotion). As per Rules, out of the aforesaid three posts of junior clerk, two were to be filled up by promotion under the 50% quota for promotion as one of the posts was already filled up by a direct recruit and another by promotion of Sri Rakesh Kumar, the aforesaid vacancy, which occurred on 31.07.2004, was required to be filled up by promotion.

The dispute is as to whether this post was to be treated as reserved or unreserved.

In the event, it is held that the post was reserved, the impugned decision will have to be upheld whereas on the contrary, the same will have to be quashed with consequential directions.

The respondent No.3 treating the post in question as unreserved passed a resolution for promotion of the petitioner as he was the senior most eligible class-IV employee for the said post. The said resolution was passed on 21.09.2004 and was sent to the D.I.O.S. on 25.09.2004. It appears that the respondent No.4 raised an objection claiming entitlement to be considered for such promotion against the aforesaid post treating it to be reserved under the 21% reservation quota for schedule caste, i.e. the category, to which he belonged. It is on such representation by the respondent No.4, the D.I.O.S. passed an order on 21.10.2004 directing the respondent No.3 to send a proposal for promotion of the respondent No.4.

Being aggrieved, the petitioner filed a writ petition before this court being Writ Petition No.45422 of 2004, which was disposed of on 29.10.2004 with the direction to the petitioners to make their representation before the D.I.O.S., who was directed to take appropriate decision by a reasoned and speaking order.

In compliance of the aforesaid order of this court, the D.I.O.S. took the decision as contained in the impugned order dated 28.12.2004.

Being aggrieved, the petitioner has filed this writ petition.

The contention of the learned counsel for the petitioner is that there being only three sanctioned posts of junior clerk in the cadre, none of them could be reserved for schedule caste/ schedule tribes as doing so would result in the reservation quota of 21% of schedule caste and 2% of schedule tribes being exceeded, which is impermissible in law. The contention is that the college had rightly sent the proposal in favour of the petitioner but the D.I.O.S. arbitrarily pressurised the college to send a proposal in favour of the respondent No.4. The reasons mentioned in the impugned order are not germane nor sustainable in law. In this regard, the learned counsel for the petitioner placed reliance on a judgment dated 03.12.2012 passed by this court in the case of Om Prakash Sharma Vs. State of U.P. and others, 2013 (5) A.D.J. 514, wherein it has been held that the 21% reservation quota cannot be exceeded.

The learned standing counsel, on the other hand, contends that there are three posts of junior clerk and one post of senior clerk. The provision of reservation was applicable by application of roster. The impugned decision, according to the learned standing counsel, does not suffer from any error. According to the roster system, one post should be reserved for schedule caste.

Having heard learned counsel for the petitioner as also the learned standing counsel and having perused the records, I am of the view that the following questions arise for consideration in the instant case:

(i) Whether out of three posts of junior clerk in the cadre of the respondent No.3, one could be reserved for promotion of a schedule caste personnel under the reservation quota of 21% or not?

(ii) Whether the impugned decision is sustainable in law?

Before proceeding to consider the aforesaid questions, it may be pointed out that on 31.01.2005, while entertaining this writ petition, this court had ordered that the promotion, appointment and joining of Mangoo Singh (respondent No.4) should abide final judgment of this court. Further, on 07.04.2005, on an application having been moved by the petitioner, this court had ordered the parties to maintain status quo as on date in respect of the promotion. Thereafter, the affidavits have been exchanged and the matter has been heard.

At the relevant time, when the post in question fell vacant, 21% reservation was prescribed vide Government Order dated 10.10.1994 under Section 3(7) of the U.P. Public Services (Reservation for Schedule Caste, Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 for promotion of schedule caste and 2% reservation was provided for schedule tribes. The question as to whether out of six, two posts in a cadre could be reserved for reserved category, came up for consideration before the Supreme Court in the case of R.S. Garg Vs. State of U.P. and others reported in 2006 (6) SCC 430, in which It was held as under:

"34. In terms of the 1994 Act, the reservation was to be confined to 21%. There were 6 posts. If the roster was to be followed, 2 posts would be reserved for the Scheduled Caste candidates, which is impermissible.

40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe (sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements."

The aforesaid issue again came up for consideration before a Division Bench of this Court in the case of Dr. Viswajeet Singh Vs. State, 2009 (4) A.D.J. 373 (DB) and Smt. Phoolpati Devi Vs. Smt. Asha Jaiswal, 2009 (2) A.D.J. 19, wherein it was categorically held that the percentage of reservation could not be exceeded and unless there were five posts in a cadre, one could not be reserved as doing so would result in the reservation quota (21+2=23)% being exceeded. The matter ultimately came up for consideration before a full bench of this High Court in the case of Heera Lal Vs. State, 2010 (6) A.D.J. 1 (FB) in view of a discordant note having been struck in the case of Mahendra Gound Vs. D.I.O.S., 2009 (6) A.D.J. 674. The full bench also categorically upheld the dictum of this court in the case of Dr. Viswajeet Singh (supra). Paras 28, 29, 30 and 34 of the full bench authority of Heera Lal are quoted hereinbelow:

"28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given then the same would amount to a non-constructive existence of a miscalculated proof in the words of the famous German Mathematician Leopold Kronecker (1823-91). In legal terms this would violate the mandate of the constitution and in cases of promotion it would not be in conformity with the same.

29. It is to be remembered that Article 16(4-A) is an enabling provision and in view of the said interpretation the same cannot be construed to confer an absolute right of reservation even beyond the limits prescribed under the law framed by the legislature, namely U.P. Act No. 4 of 1994. We may clarify that the roster loses its capability of application where the rule of reservation itself cannot be pressed into service keeping in view the numerical strength of the cadre in such matters as in the present case which is less than five. To do so would be a miscalculation in raw mathematics and the fine tenets of law. The argument of the State if accepted would result in unconstitutionality and an illogical acceptance of the rule of reservation. This would also satisfy the test of reasonableness as arithmetical calculations are also one of the logical foundations for reason. The calculation cannot be violated as explained above and if that is done then it would be unreasonable as well as unconstitutional.

30. The statutory position as contained in U.P. Act No. 4 of 1994 completely takes care of the situation and the impact of the maximum reservation percentage provided for therein cannot be nullified through an interpretation which is neither supported by any Government Order, Rule or judicial pronouncement. The case of Mahendra Kumar Gond (supra) did not decide the question which has been raised in relation to the calculation of the minimum number of posts to be available for applying the rule of reservation.

34. In view of the reasons in support of the conclusions drawn herein above our answer to the questions posed are as follows:-

1. Question No. 1 is answered in the negative holding that either in cases of promotion or direct recruitment, the rule of reservation providing for 21% reservation to scheduled castes under U.P. Act No. 4 of 1994 as applicable to aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five.

2. The decision in the case of Mahendra Kumar Gond Vs. State of U.P. reported in 2009 (6) ADJ Pg. 674 having been rendered without taking notice of the two Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi (supra) is not approved. The Judgments of Dr. Vishwajeet Singh is hereby approved as laying down the law correctly on the issue raised herein."

In view of the aforesaid legal position, it is trite that the roster is subservient to the percentage of reservation/ reservation quota and in the event of conflict between the two, it is the latter, which will prevail. In the instant case, as there are only 3 posts in the cadre, none could have been reserved for promotion of schedule caste category candidates as doing so would amount to exceeding the 21% quota for schedule caste. As the reservation quota/ percentage of reservation itself was only 21%, there was no question of application of reservation, a fortiorari, there was no question of applicability of roster. The D.I.O.S. has wrongly held that one of the posts was to be reserved by application of roster as provided under the G.O. dated 10.10.1994. The impugned decision is, thus, on the face of it, is against law and is not sustainable.

It is not out of place to mention that much water has flown down the river since 2004. In the meantime, a challenge was made to the provision of reservation in promotion as contained in Section 3(7) of the Reservation Act, 1994 in Writ Petition No.1389 (SB) of 2007, P.K. Singh and others Vs. State of U.P. and others and a division bench of this court sitting at Lucknow Bench, vide its judgment dated 04.01.2011, declared the aforesaid provision as ultra vires, but it protected the reservation based provisions already made i.e. prior to 04.01.2011. However, on a challenge being made before the Supreme Court in Civil Appeal No.2608 and other connected appeals, while affirming the said judgment of this court, the Supreme Court on 27.04.2012 modified it partly by restricting the protection granted by it to only such promotions, which were covered by the dictum in Indra Sawhney Vs. Union of India, 1992 Supp. (3) SCC 217, i.e. promotions made till 16.11.1997. Thus, by means of the said modification, the judgment of the High court and the declaration of Section 3(7) as made by the Supreme Court was given retrospective effect. Thus, for this reason also, as the impugned decision has been taken after 16.11.1997, the same cannot be sustained being hit by the aforesaid judgment of the Supreme Court dated 27.04.2012 in the case of U.P. Power Corporation Ltd. Vs. Rajesh Kumar and others reported in 2012 (7) SCC 1. Relevant paragraphs are being quoted hereinbelow:

"87. In the ultimate analysis, we conclude and hold that Section 3(7) of the 1994 Act and Rule 8-A of the 2007 Rules are ultra vires as they run counter to the dictum in M. Nagaraj. Any promotion that has been given on the dictum of Indra Sawhney and without the aid or assistance of Section 3(7) and Rule 8-A shall remain undisturbed.

88. The appeals arising out of the final judgment of the Division Bench at Allahabad are allowed and the impugned order is set aside. The appeals arising out of the judgment from the Division Bench at Lucknow are affirmed subject to the modification as stated hereinabove. In view of the aforesaid, all other appeals are disposed of. The parties shall bear their respective costs."

As per the seniority list annexed as Annexure-1 to the writ petition, out of 12 class-IV employees, the respondent No.4 was the junior most, whereas the petitioner, who was placed at Sl. No.4, was the senior most eligible employee for promotion to the class-III post as the other persons at Sl. No.1, 2 & 3 did not possess the requisite qualification of graduation. The respondent No.4 in spite of being junior most was held entitled for consideration by the D.I.O.S., out of turn, only on the basis of a mis-conception about the applicability of reservation for schedule caste, though there were several persons senior to him belonging to the unreserved category. The seniority position is not at all disputed. The respondent No.4 in spite of having been served notice of this writ petition and having put in appearance through Sri C.P. Singh, advocate, has not contested the matter as he has neither filed any counter affidavit nor his counsel has appeared to argue the case on his behalf.

In view of the above discussion, the impugned decision and all consequential actions are liable to be quashed. The same are accordingly quashed. However, if the respondent No.4 has been promoted consequent to the impugned decision and has worked on the promotional post, the salary and pecuniary benefits of the said post already paid to him shall not be recovered. The respondent No.4 shall stand reverted to his substantive class-IV post. As we have quashed the impugned decision, the opposite parties shall proceed to fill up the post in question by promotion, treating it to be unreserved by considering all the eligible persons as per law and shall fill up the same within a period of three months from the date of production of a certified copy of this order, if not already filled up accordingly.

Subject to above, the writ petition is allowed. Questions No.1 & 2 are answered accordingly.

Order Date :- 28.05.2014

NLY