Allahabad High Court
Imitiyaz Ali vs State Of U.P.Thru Principal ... on 9 May, 2017
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Reserved on 26.04.2017
Delivered on 09.05.2017
Court No. - 19
Case :- SERVICE SINGLE No. - 5317 of 2006
Petitioner :- Imitiyaz Ali
Respondent :- State Of U.P.Thru Principal Secretary (Education) & 4 Ors
Counsel for Petitioner :- Rakesh Kumar Srivastava,Mrs.Seema Srivastava,N.K.Pandey
Counsel for Respondent :- C S C,Gauri Shankar Singh,Satish Chandra
Hon'ble Vivek Chaudhary,J.
1. By the present writ petition, petitioner challenges promotion of respondent no.5 made on the post of Lecturer (Hindi) from Post of Assistant Teacher L.T. Grade at I.R. Inter College, Sandila, District Hardoi.
2. Facts of the case are that petitioner was appointed as Assistant Teacher in L.T. Grade on 18.05.1987 whereas respondent no. 5 was appointed on 01.01.1988. One Sri Harihar Bux Singh, who was a direct appointee, retired on 30.06.2003.
3. There were six posts of Lecturers in the institution, out of which three posts were to be filled up by direct recruitment and remaining three posts were of promotion quota. In the year 2006, all the three posts of direct recruitment were lying vacant while all the three posts of promotion quota were filled up by promotion of S/Shri Abdul Sabool, Haseen Ahmad and Sarfuddin. Sri Haseen Ahmad retired on 30.06.2006 on attaining age of superannuation. This post fell vacant from 01.07.2006. These facts are given in paragraph nos. 14 and 15 of the writ petition and same are admitted in paragraph nos. 12 and 13 of the counter affidavit filed on behalf of respondent no.5.
4. District Inspector of Schools recommended the case of respondent no.5 on the ground of being a scheduled caste candidate, on finding that no scheduled caste candidate is appointed in the institution as Lecturer, to the Joint Director of Education.
5. In paragraph no. 13 of the counter affidavit filed on behalf of respondent no.5 it has been specifically stated that on the vacancy occurred due to retirement of Sri Harihar Bux Singh, he has been appointed on 19.05.2006 as Lecturer (Hindi) by promotion. Thus, the dispute before Court is as to whether promotion of respondent no. 5 is valid or not.
6. It is admitted by respondent no. 5 that he was appointed in the vacancy of Sri Harihar Bux Singh who retired on 30.06.2003. As noted above, the vacancy which occurred due to retirement of Sri Harihar Bux Singh is of direct recruitment and not of promotion. On 19.05.2006 all the three posts of promotion quota were filled up and hence fourth person could not be appointed by promotion on 19.05.2006. Thus, promotion of respondent no. 5 on 19.05.2006 is illegal as there was no vacancy available on the said date.
7. Even otherwise, approval was granted to the appointment of respondent no.5 on the basis that he is a scheduled caste candidate and since no scheduled caste candidate has been appointed as Lecturer by promotion, hence the said quota is to be filled up.
8. Challenging the same, petitioner has relied upon a judgment of this Court rendered in the case of Rajendra Prasad Awasthi v. State of U.P. and others, 3013 (1) ADJ 624. By the said judgment, this Court has held that reservation for scheduled caste is 21% and if out of three posts, one is filled under reservation quota, same would be in excess of 21%, which is contrary to law. Paragraph no. 21 of the said judgment is relevant, which is extracted herein below:-
"21. I have to bear aforementioned principle in the mind while adverting to rival submissions, indisputably, only three posts of lecturers are available there under the promotional quota out of six sanctioned posts. As the law laid down in the above noted case for promotion at least five posts ought to have been existed in the present case. Since, there are only three posts, no such promotion is possible for a scheduled caste candidate as a lecturer in Sociology."
9. The said judgment squarely covers the facts of the present case as here also there are only three posts of promotion.
10. In view of above, promotion of respondent no. 5 on both counts is illegal and contrary to law and cannot stand. As such promotion of respondent no. 5 on the post of Lecturer (Hindi) is set aside. Writ Petition is allowed.
11. Respondent nos. 1 and 2 are directed to make a fresh appointment on the said post in accordance with law.
12. No order as to costs.
Order Date :- 09.05.2017
AU
(Vivek Chaudhary,J.)
