Manvendra Pratap Singh vs State Of U.P. And 4 Ors.
2017 Latest Caselaw 1483 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 

 
Case :- WRIT - A No. - 177 of 2017
 
Petitioner :- Manvendra Pratap Singh
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- Murali Manohar,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav, JPN Singh
 

 
Hon'ble Manoj Kumar Gupta,J.

The sole issue for consideration in the instant writ petition is whether the recommendation made by the U.P. Secondary Education Services Selection Board, Allahabad1 for appointment of the fifth respondent on the post of Lecturer (Geography) under the scheduled caste quota in Inter College, Nadwa Sarai, Mau is valid or not.

The institution in question is a recognised institution under the U.P. Intermediate Education Act, 1921 and the provisions of U.P. Secondary Education Services Selection Board Act, 19822 and the U.P. Secondary Education Services Selection Board Rules, 19983 are applicable to it. According to the petitioner, there are in all eight sanctioned posts of lecturer in the institution, out of which four fall under the direct recruitment4 quota and the remaining four under the promotion quota. The petitioner claims that he was appointed as Lecturer (Geography) on adhoc basis on 17.9.1999. He filed writ petition no. 3094 of 2008 before this Court in which an interim order dated 30.5.2008 was passed in his favour directing the respondents to permit him to continue in service till a duly selected candidate recommended by the Commission (now Board) joins the post. In pursuance thereof, an order dated 24.3.2009 was passed by the District Inspector of Schools, Mau whereby he was permitted to continue in service and was also paid his salary. Ultimately, though the writ petition was dismissed, but in Special Appeal No.412 of 2012 filed by the petitioner challenging the judgement of the learned Single Judge, an interim order was again passed in his favour directing payment of salary to him. The interim order passed in the Special Appeal on 30.5.2012 is in following terms:-

"In the meantime, in terms of judgment and order passed in Special Appeal No.250 of 2012 in line with the judgment of Hon'ble the Apex Court rendered in the case of Vishwa Mohini Versus DIOS and others, which is reported in 2012 (1) SCC 122, we direct that the appellant shall be paid salary by the State, which, depending upon the facts of each case, may be recovered from the Committee of Management or any other individual, as case may be, which would, however, not include the appellant, provided that the appellant was getting salary from the State exchequer on the date of impugned order dated 3.5.2012".

The specific case of the petitioner is that the interim order passed in the special appeal is still in operation and in pursuance of the said order, he is still working and drawing salary on the post of Lecturer (Geography). This fact has also not been disputed before this Court by the respondents.

It is also the specific case of the petitioner that out of four posts of lecturer which fall under the DR quota, the post of Lecturer (Hindi) is occupied by one Smt. Shakuntla Devi under scheduled caste quota, in pursuance of recommendation made by the Board on 18.11.2005. Thus, the quota of scheduled caste stand exhausted and at present no candidate could be appointed under the scheduled caste quota. The Board has illegally made recommendation for appointment of the fifth respondent on the post of Lecturer (Geography) under the scheduled caste quota. The petitioner apprehends that as soon as the candidate selected by the Board joins, his appointment would come to end. He has therefore filed the instant writ petition challenging the recommendation made by the Board for appointment of the fifth respondent as Lecturer (Geography) under the scheduled caste quota in the institution.

The main contention of learned counsel for the petitioner is that there being only four posts under the DR quota and one post being already occupied by Smt. Shakuntla Devi, a scheduled caste candidate recommended by the Board, no further recommendation under the SC category could be made as it would exceed the quota prescribed under the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. It is urged that the reservation in favour of scheduled caste being only to the tune of 21%, not even one post fall under SC quota. On the other hand, the submission of learned counsel for the fifth respondent is that there being in all eight posts of Lecturer and the prescribed quota being 21%, two posts were to be filled up by SC candidates and thus there is no illegality in the recommendation made by the Board for appointment of the fifth respondent as Lecturer in the institution. The same argument has been canvassed by the learned Standing Counsel representing the State-Respondent and the Sri A. K. Yadav, learned counsel appearing on behalf of the third respondent.

Since there is no factual dispute and the issue involved is a purely legal one, therefore learned counsel counsel for the parties advanced their arguments on the said issue without seeking time for filing counter affidavit.

Indisputably, the quota of SC category is 21%. There is no dispute between the parties that the provisions of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 19945 applies in relation to the appointment on the post in the institution. It is also admitted to the parties that out of eight sanctioned posts of Lecturer, four posts are to be filled by DR and the remaining four by promotion.

It is now well settled by the Constitution Bench judgement of the Supreme Court in Indra Sawhney v. Union of India6 that over all reservation cannot exceed 50%. A Full Bench of this Court in Heera Lal v. State of of U.P. and others7 while considering the issue relating to applicability of reservation to an institution governed by the Act and the rules, held that where there are more than one source of recruitment, the rule of reservation has to be applied to the posts available from a particular source of recruitment. In paragraph 32 of the judgement, an illustration has been cited in regard to an institution having in all eight posts in a cadre. Thus, four posts have to be filled by promotion and four by DR. In such a case, 21% reservation prescribed for scheduled caste could not be applied as that would amount to reservation of 25% thus exceeding the prescribed percentage. However, in an eventuality where a suitable candidate against promotion quota is not available, such a vacancy could be filled by DR and thus, there is a possibility that the number of posts available for DR may go upto five or above. In such a case, the reservation meant for scheduled caste category could be applied. The judgement concludes by holding that where the number of posts in the cadre is less than five, 21% reservation prescribed under the Act of 1994 could not be made applicable. The relevant observations made in this regard are as under :-

"32. There may be cases where there is a rule making provision for different sources of recruitment within the same cadre, then reservation has to be applied to the posts available for being filled up in accordance with the source of recruitment. This issue may arise in the context where a candidate is not available for filling up the post by way of promotion and the same has to be diverted to be filled up by direct recruitment. Such a situation will arrive in cases where the number of posts may be five or more so as to make the rule of reservation applicable. Taking for instance were there are say 8 posts in a cadre and the rule is, as presently involved, namely that 50% posts have to be filled up by way of promotion, in that event four posts have to be filled up by promotion and four by direct recruitment. The rule of reservation for appointment by way of promotion is available only to scheduled castes in the State of U.P. and no such rule is available for other backward categories. They are entitled to the benefit of reservation only in the process of direct recruitment. In the example given above where four posts out of eight are to be filled up by direct recruitment one post will have to be given to the other backward category keeping in view the 27% mandate of reservation in favour of such category under the 1994 Act. Against four posts of promotion quota, reservation to a scheduled caste category cannot be granted as there as to be a minimum of five posts for applying the 21% reservation for promotion. In a given situation where no other candidate of any category is available for promotion against the four posts, then such a vacancy to be filled up by promotion may have to be carried over for direct recruitment. This would bring about a change of strength in the source of recruitment thus fluctuating the strength of the post available by direct recruitment. A scheduled caste candidate would therefore, get the benefit of reservation if the cadre strength is increased to five for direct recruitment, even though the same candidate would not get the benefit of reservation if the promotion quota of 50% is adhered to. It would be appropriate to point out that taking a case where there are five posts for being filled up by promotion and five by direct recruitment in the cadre then in such an event the rule of reservation to the extent of 21% in both the sources can be conveniently made applicable without disturbing the ratio in either of the sources.

33. In such a situation wherever the issue of reservation arises one will have to keep in mind the strength of the cadre as also the source of recruitment which is governed by a statutory rule. The rule providing for the source of recruitment therefore will have to be balanced in such situations. The fluctuating strength of a cadre will therefore have to be kept in mind 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."

(emphasis supplied)

It is not the case of any of the party that there has been any addition to the number of posts available for being filled up by DR on account of suitable candidates being not available under the promotion quota. The requisition which was sent to the Commission by the District Inspector of Schools by covering letter dated 1.10.2008 indicates that at the relevant time, there were three vacant posts of Lecturer under DR quota out of which post of Lecturer (English) and Lecturer (Geography) were notified for being filled up by the general category candidates whereas the post of Lecturer (Education) by scheduled caste candidate. In pursuance thereof, one Shiv Kumar Sonkar, a scheduled caste candidate was recommended for appointment on the post of Lecturer (Education) in the institution. However, the management did not issue appointment letter to him compelling him to file writ petition No. 40309 of 2012 (Shiv Kumar Sonkar vs. State). It was disposed of by order dated 20.9.2012 in terms of judgment in writ petition No. 43852 of 2012 decided on 3.9.2012. In the said judgement, it has been held that such a dispute is to be decided by the Director/Joint Director of Education under Section 17/ Rule 13(4) of the Act/Rules. In consequence, the grievance of Shiv Kumar Sonkar was taken up for consideration by the Joint Director of Education. Sri Arvind Kumar Rai, who was working as Lecturer (Education) on adhoc basis contested his claim contending that the post of Lecturer (Hindi) was already occupied by Smt. Shakuntla Devi, a scheduled caste candidate recommended by the Board and thus, the quota of schedule caste stands exhausted and no further recommendation of scheduled caste candidate could be made. The controversy was decided by the Joint Director of Education, Azamgarh Division, Azamgarh by order dated 3.4.2013 accepting the contention that the scheduled caste quota under the DR category stand exhausted as Smt. Shakuntla Devi, a scheduled caste candidate recommended by the Board was already occupying one of the posts. He accordingly, recommended for adjustment of Shiv Kumar Sonkar, the candidate recommended by the Board in some other institution. The District Inspector of Schools on 8.12.2014 again sent a verification in regard to the status of vacant posts in the institution. This time, he mentioned that the post of Lecturer (Education) was to be filled by a general category candidate apparently in view of the order passed by the Joint Director of Education dated 3.4.2013. However, ignoring the finding in the order of Joint Director of Education that SC quota was full, he once again wrongly categorised the post of Lecturer (Geography) under SC quota.

In Tejveer Singh v. State of U.P. and others8 the learned Single Judge while considering the applicability of scheduled caste quota against the total sanctioned strength of nine lecturers in an Intermediate College governed by the provision of the Act and the Rules held that four posts being available under the DR quota, even one post could not be filled up from scheduled caste category candidate, as it would result in exceeding the prescribed percentage of 21%. The Full Bench in Heera Lal (supra) has held that the quota prescribed for scheduled caste category under the 1994 Act could not be made applicable where the number of posts available under the DR quota is less than five. It is not disputed by the parties that only four posts were available under the DR quota, out of which one of the post was already occupied by Smt. Shakuntla Devi, a scheduled caste candidate recommended by the Board. In such view of the matter, there was absolutely no post available for being filled up under scheduled caste quota. Thus, the recommendation of the name of the fifth respondent for appointment under SC quota was not valid.

Infact, the entire controversy came into existence on account of the wrong verification made by the District Inspector of Schools in the year 2014 while intimating the Board about the status of vacant posts. The District Inspector of Schools was aware of the fact that the Joint Director of Education by order dated 3.4.2013, in reference to the case of Shiv Kumar Sonkar, scheduled caste candidate, had already held that SC quota stands exhausted. Had he intimated the correct position to the Board, at the time he was called upon by the Board to send a verification about the current status of the vacancies, the impugned recommendation of a scheduled caste candidate for being appointed as a Lecturer in the institution would not have been made.

Under the Act and the Rules, in case there is a dispute relating to correctness of the recommendation made by the Board, it is required to be adjudicated by the Director/Joint Director of Education. In the instant case, as noted above, the Joint Director of Education had in the past determined an identical controversy in reference to the recommendation made by the Board for appointment of Shiv Kumar Sonkar as Lecturer under the scheduled caste quota. It was held that such recommendation would not be valid as the scheduled caste quota stands exhausted. In such view of the matter, this Court is of the opinion that remitting the same controversy for consideration by the authorities under the Act would be an empty formality.

This Court having found the recommendation made by the Board for appointment of the fifth respondent as a Lecturer in the institution under the scheduled caste category as not valid, the same is hereby quashed. All consequential orders including the one passed by the District Inspector of Schools dated 16.12.2016 is also accordingly quashed. The third respondent is directed to adjust the fifth respondent against any other vacancy as provided under Rule 13(5).

The writ petition stands allowed to the extent indicated above.

Order Date :- 31.05.2017

skv

(Manoj Kumar Gupta, J.)