Allahabad High Court
C/M Rashtriya Kisan P.G. College ... vs State Of U.P. & 4 Others on 8 August, 2017
Bench: Arun Tandon, Krishna Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10 A.F.R.
Case :- SPECIAL APPEAL DEFECTIVE No. - 393 of 2017
Appellant :- C/M Rashtriya Kisan P.G. College Thru' Its Manager & Another
Respondent :- State Of U.P. & 4 Others
Counsel for Appellant :- Vijay Kumar Singh,Hritudhwaj Pratap Sahi
Counsel for Respondent :- C.S.C.,Kalp Nath Rai
Hon'ble Arun Tandon,J.
Hon'ble Krishna Singh,J.
Heard Sri Hritudhwaj Pratap Sahi, Advocate, assisted by Sri Vijay Kumar Singh, learned counsel for the appellant, Sri Kalp Nath Rai on behalf of respondent No.5 and Standing Counsel on behalf of the respondent Nos. 1, 2 and 3.
With the consent of the parties this special appeal is being disposed of without calling for any further affidavits specifically in view of the order proposed to be passed today by this Court.
Facts in short leading to the special appeal are as under:
Rashtriya Kisan Post Graduate College, Shamli, District Shamli (hereinafter referred to as the 'College') is an Institution affiliated to Chaudhary Charan Singh University, Meerut (hereinafter referred to as the 'University'). It is not in dispute that promotion on Class-III post in a recognized and aided Degree College is regulated by the first statutes of Meerut University and the Government Order issued in that respect from time to time. According to the counsel for the parties under the Government Order applicable 20% of the Class III post are required to be filled by way of promotion from Class IV employees working in the Institution.
It is not in dispute that in the College there are 9 (nine) sanction post of Class III employees. 20% to the same work out to 1.8. The issue which needs consideration is as to whether the principle rounding of could be applied and since the fraction was more than 5 in the facts of the case, the total number of post to be filled by promotion shall be treated as to even in absence of statutory provision/Government Order providing for such rounding of or the total number of post to be filled by promotion would remain as one only. In view of the fact that if two post are filled by promotion the percentage of post reserved for promotion would increase to 23% in the facts of the case.
Learned counsel for the appellant would contend that in absence of any Government Order/Statutory Provision, like the one provided for under Chapter-III Regulation 2 of the regulations framed under the Intermediate Education Act, 1921 providing for rounding of, no general principle of rounding of is applicable. Therefore, only one post at best can be reserved for promotion. Reference is made to the Full Bench Judgment of this Court in the case of Heera Lal Vs. State U.P. 2010(82)ALR 453.
The full Bench of this Court while considering the issue of reservation has specifically held that the principle rounding of cannot be applied, inasmuch as if such principle is applied the percentage of reservation would exceed beyond that provided for.
We need not record any conclusive finding on the aforesaid legal submission which has been raised before us, inasmuch as the learned Single Judge has not taken note of the aforesaid contention, apparently because the Committee of Management, the appellant before us was not heard before passing the order dated 12.5.2017, although it was a party to the writ petition and was impleaded as respondent No. 4 in the writ petition.
We are of the considered opinion, that the Committee of Management did require an opportunity of the hearing in the facts of the case to demonstrate before the writ Court that in absence of vacancy being available within the promotion quota the claim of the writ petitioner could not have been directed to be considered for promotion. Since such a procedure has not been adopted by the learned Single Judge, despite the Committee of Management being a party to the petition. The judgment in appeal cannot be sustained.
We in the facts of the case, set aside the judgment and order of the learned Single Judge dated 12.5.2017. Writ petition No. 20922 of 2017 is restored to its original number with a request upon the learned Single Judge to consider and decide the writ petition afresh at the earliest possible without granting any unnecessary adjournment to either of the parties.
Let the writ petition be listed before the learned Single Judge in the week commencing on 4th September, 2017.
The appellant are at liberty to file counter by that date. All consequential action taken in terms of the judgment and order of the learned Single Judge under challenge would fall automatically in view of the order having been set aside by us today.
This Special Appeal is allowed.
Order Date :- 8.8.2017
Akbar
