Dr. Arti Sanghi And 2 Others vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 12857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 

 
Case :- WRIT - A No. - 3197 of 2022
 

 
Petitioner :- Dr. Arti Sanghi And 2 Others
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Ayush, Up Civil Sectt. Lko. And 2 Others
 
Counsel for Petitioner :- Prafulla Tiwari,Lalta Prasad Misra
 
Counsel for Respondent :- C.S.C.,Raj Kumar Upadhyaya (R.K.Upadhyaya),Ravi Shanker Tewari
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard Shri Lalta Prasad Mishra, Advocate assisted by Shri Praful Tiwari, learned Counsel for the petitioner, Shri Sandeep Sharma, learned Standing Counsel for the State-respondents and Shri Ravi Shanker Tiwari, learned Counsel for Uttar Pradesh Public Service Commission.

2. The present petition under 226 of the Constitution of India has been filed, whereby the Advertisement No.02/2020-21 dated 24.09.2020 issued by Uttar Pradesh Public Service Commission (hereinafter referred to as "U.P.P.S.C.") Prayagraj, for filling up 130 posts of Lecturer in nine Government Homeopathic Medical Colleges in twelve different subjects/disciplines has been sought to be quashed.

3. The controversy involved in this petition pertains to narrow compass i.e. whether the reservation is to be applied department wise or subjectwise treating it as a unit, and whether clubbing of the posts of Lecturers of each subject/discipline of twelve subjects/disciplines sanctioned in nine Government Homeopathic Medical Colleges of Uttar Pradesh is against the statutory prescription and constitutional mandate or whether a college has to be taken as a unit for reservation or all the colleges cumulatively constitute a unit for application of policy of reservation.

4. The Uttar Pradesh Medical Teachers' Service Rules, 1990 (hereinafter referred to as "Rules, 1990") which regulate recruitment and conditions of services of teachers appointed in the Government Homeopathic Medical Colleges. Teachers' provide that service is a State service comprising of Group-A and Group-B posts. Rule 4 of the Rules, 1990 provides cadre of service, which would read as under:-

" 4. Cadre of Service-(1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.

(2) The strength of the service and of each category of posts therein shall, until orders varyfing the same are passed under sub-rule (1), be as in the Appendix- ''A' :

(a) Provided that the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post without thereby entitling any person to compensation;

(b) The Governor may create such additional permanent or temporary posts as he may consider proper. "

5. The Appendix-A of the Rules, 1990 would reveal that it is a single cadre post at state level and the strength of different posts has been mentioned. There is one permanent post and nine temporary posts of Principal and the cadre of Professor consists of two permanent posts, cadre of Reader is of two temporary posts whereas, cadre of Lecturer is of seven permanent posts and one hundred sixteen temporary posts i.e. total 123 posts. The source of recruitment to various category posts in the service is provided in Rule 5 of the Rules, 1990, which would read as under:-

" 5. Source of recruitment-Recruitment to the various categories of posts in the Service shall be made from the following sources:

(a) Principal by direct recruitment through the commission.

(b) Professor-(i) Fifty per cent by direct recruitment through the Commission.

(ii) Fifty per cent by promotion, through the Commission, from amongst substantively appointed Readers who have at-least ten years, of teaching experience including three year as Reader in the subject concerned.

(c) Reader-(i) Fifty per cent by direct recruitment through the Commission:

(ii) Fifty per cent by promotion through the Commission, from amongst substantively appointed Lecturers who have teaching experience of seven years including four years as Lecturers in the subject concerned.

(d) Lecturer-By direct recruitment through the Commission."

6. Rule 6 of the Rules, 1990 provides for reservation for the candidates belonging to the Schedule Castes/Schedule Tribes/Other Backward Categories, whereas, Rule 20 of the Rules, 1990 provides for provision for seniority of persons in any category of post is to be determined from the date of order of substantive appointment. There is no provision of collegewise seniority in the said Rules. The post of Lecturer is transferrable from one college to another.

7. National Homeopathic Council of India has framed the regulation which provides qualifications and eligibility conditions for different posts, which is appended as Appendix-2 to the Rules, 1990.

8. The State Government has sent a requisition for filling up the vacant post of Lecturer not as per collegewise but as per the cadre strength provided in the Rules, 1990, in each subject/discipline as per sanctioned strength of the subject/discipline. The requisition would suggest that for every subject/discipline, total posts vacant in all the nine Government Homeopathic Medical Colleges have been clubbed and the reservation has been provided in respect of each of twelve different subjects/disciplines, and the reservation has not been provided on the total posts, which are to be filled up but in each subjects/disciplines but the reservation has been provided on against the vacancies of each subject/discipline, clubbing all the vacant posts of all the nine Government Homeopathic Medical Colleges. As such, details of the posts in each subject/discipline in the requisition sent by the State Government for filling up the vacant posts and reservation has been provided in each subject by the State Government. The requisition has been annexed with counter affidavit filed on behalf of the State-respondents as Annexure No.CA-2.

9. Shri Lalta Prasad Mishra, learned Counsel for the petitioner has submitted that each medical college and each department in the Government Medical College is a unit in itself and there is no common cadre of Lecturer subjectwise, and, therefore, by combining vacant posts in each subject/discipline in all nine Government Homeopathic Medical Colleges is in violation of the statutory prescription and the judgment of this Court in the case of Vivekanand Tiwari vs. Union of India reported in 2017 SCC Online All 2729, which has been upheld by the Supreme Court vide order dated 22.01.2019 in S.L.P (Civil) Diary No.14318/2018.

10. It has been further submitted that existence of common cadre of posts, and five or more posts in a cadre/sub cadre is a sine qua non applying for caste reservation in the service. However, in the present case total number of twelve subjects/disciplines are taught in each of the nine Government Homeopathic Medical Colleges, and there are at the most three sanctioned posts in each subject/discipline in a college, thereby, the caste reservation would not be applicable as subject/discipline of the particular college has to be treated as a unit for applying the reservation treating the said subject/discipline of the said college as a unit.

11. On the other hand, Shri Sandeep Sharma, learned Standing Counsel for the State-respondents and Shri Ravi Shanker Tiwari, learned Counsel for the U.P.P.S.C have laid emphasis on the Rules, 1990 and have submitted that even under the said rules, cadre of Lecturers has been defined, which would mean that the cadre of post of Lecturer consist of all the posts in nine Government Homeopathic Medical Colleges and strength of the cadre is 123 posts a per the Appendix-A to the Rules, 1990. They have further, submitted that when the cadre is one and the State has applied reservation subjectwise, it is totally in accordance with the statutory prescription and the judgment of the this Court in the case of Vivekanand Tiwari (supra). An individual college cannot be taken as a unit for applying the provisions of reservation. The post of Lecturer is transferrable from one college to another and, therefore, in each subject/discipline the reservation has been applied which is perfectly in accordance with the Rules, 1990 and law laid down by the Supreme Court and this Court.

12. I have considered the submissions of Shri Lalta Prasad Mishra, Advocate assisted by Shri Praful Tiwari, learned Counsel for the petitioner, Shri Sandeep Sharma, learned Standing Counsel for the State-respondents and Shri Ravi Shanker Tiwari, learned Counsel for U.P.P.S.C.

13. A cadre means the strength of service or a part of service. The Supreme Court in the case of Union of India vs. Pushpa Rani and Others reported in (2008) 9 SCC 242 has held that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. Judicial review comes into play only if State action is contrary to constitutional or statutory provisions or is patently arbitrary or vitiated by malafide. It has been further held that for the purposes of roaster, wider meaning has to be given so as to take within its fold posts sanctioned in different grades. While interpreting service rules of Railway, it has been held that even temporary, work charge, super numrie and shadow posts created in different grades can constitute part of the cadre and no fix meaning can not be ascribed to the term "cadre". In different service rules framed under Article 309 of the Constitution of India or rules framed in exercise of the powers of delegated legislation, the word "cadre" has been given different meaning. The post sanctioned in different grades in Railways constitute independent cadres. Paragraph 22, 23 and 27 of the said judgment which are relevant are extracted hereunder:-

"22. A conjoint reading of Para 103(7) of the Code, Para 103(iii) of the Railway Establishment Manual and Circular R.B.E. No. 113/97 makes it clear that in the Railways, the term "cadre" generally denotes the strength of a service or a part of a service sanctioned as a separate unit. However, for the purpose of roster, a wider meaning has been given to the said term so as to take within its fold the posts sanctioned in different grades. The reason for giving this enlarged meaning to the term "cadre" is that posts in the railway establishment are sanctioned with reference to grades. Even temporary, work-charged, supernumerary and shadow posts created in different grades can constitute part of the cadre.

23. In the service jurisprudence which has developed in our country, no fixed meaning has been ascribed to the term "cadre". In different service rules framed under proviso to Article 309 of the Constitution as also rules framed in exercise of the powers of delegated legislation, the word "cadre" has been given different meaning.

.....

27. The argument of Shri Sushil Jain that Para 4(b) of Circular R.B.E. No. 113/97 dated 21-8-1997 is ultra vires the definition of the word "cadre" contained in Para 103(7) of the Code completely ignores the stark reality that in the railway establishment the posts are sanctioned with reference to grades which term means sub-division of a class, each bearing a different scale of pay. Therefore, the posts sanctioned in different grades would constitute independent cadres and we see no reason why a restricted meaning should be given to the term "cadre" for the purpose of implementing the roster."

14. It is has been further held that to secure social, political and economic justice, the State is empowered to take non discriminatory and affirmative action in favour of downtrodden. The framers of the Constitution of India were conscious and aware of the inequalities and disparities in the social fabric of the country and therefore, they set goal of social, political and economic justice in the preamble of the Constitution of India and to achieve this goal they enacted Articles 14, 15 and 16 in the Constitution of India. Providing reservation of seats and post in the field of eduction and employment are reflective or affirmative action taken to achieve the goal of justice and equality. Paragraph 39 and 40 of the said judgment would read as under:-

"39.The framers of the Constitution were very much conscious and aware of the widespread inequalities and disparities in the social fabric of the country as also of the gulf between rich and poor and this is the reason why the goal of justice'social, political and economic was given the place of pre-eminence in the Preamble. The concept of equality enshrined in Part III and Part IV of the Constitution has two different dimensions. It embodies the principle of non-discrimination [Articles 14, 15(1), (2) and 16(2)]. At the same time it obligates the State to take affirmative action for ensuring that unequals (downtrodden, oppressed and have-nots) in the society are brought at a level where they can compete with others (haves of the society) [Articles 15(3), (4), (5), 16(4), (4-A), (4-B), 39, 39-A and 41].

40.The legislative and administrative measures taken by the State for providing reservation of seats and posts in the field of education and employment are reflective of the affirmative action taken for achieving the goal of real equality. However, implementation and execution of such actions have continuously faced roadblocks at several stages. Those who had been benefited by the existing system cried foul and created the bogey of violation of their legal and constitutional rights. Almost all the actions taken by the State and its agencies for ameliorating the conditions of have-nots of the society by providing reservation wer(2017) SCC Online All 2729 e subjected to periodical judicial scrutiny. By and large, the courts approved the affirmative actions of the State but on some occasions the policy of reservation or implementation thereof was found to be faulty and actions taken by the Government have been nullified or sliced by judicial intervention."

15. Thus, it is for the employer to define the cadre taking into consideration the nature of service. Under the Statutory Rules, 1990, all the posts of Lecturers in all nine Government Homeopathic Medical Colleges constitute one cadre. The reservation has been provided in the requisition on vacancies subjectwise/disciplinewise. This definition of cadre in the Rules, 1990 does not violate any constitutional mandate, particularly, when all the colleges are under the unified supervision and control of the State Government and the posts are transferrable from one college to another.

16. The Court is required to see whether the requisition for filling up the vacant posts in all twelve different subjects/discipline and clubbing of all the vacant posts in each subject of all nine Government Homeopathic Medical Colleges in any manner violates the statutory prescription or constitutional provisions.

17. Shri Lalta Prasad Mishra, learned Counsel for the petitioner has not been able to point out that how the reservation subjectwise clubbing all the posts of that subject of all nine Government Homeopathic Medical Colleges is in violation of statutory prescription or the constitutional provisions.

18. The Division Bench of this Court, in its judgment in Vivekanand Tiwari (supra) has held that applying the reservation on teaching post treating the university as a "unit" for the different level of teachers and not the department/subject as a "unit" was wholly incorrect and such an advertisement issued by the Banaras Hindu University was quashed.

19. The Division Bench of this Court also took note instructions/guidelines of 2006 of the University Grants Commission for applying the reservation treating the University as a "unit" against the law. The different qualifications are prescribed for each department and subject as such, an Assistant Professor in subject A cannot make an application for direct appointment as Associate Professor or Professor in subject B, C or D but he can only apply for a post in subject A.

20. This Court, quashed Clause 6(c) and 8(a)(v) of the University Grants Commission's Guidelines of 2006, applying the reservation treating the University as a "Unit". Paragraph No.69 of the said judgment would read as under:-

"69. There is yet another reason why the request of University Counsel cannot be accepted. As we have held that the relevant clauses of the policy viz. 6(c) and 8(a)(v) of the UGC dated 25.08.2006 as also the letter of the UGC dated 19.02.2008 to be unsustainable the entire advertisement in question relating to teaching posts has to be quashed. Further as we have held that the advertisement published by the BHU was in violation of the settled law and it also being arbitrary, unreasonable, unworkable by applying the reservation on teaching posts treating the University as a ''Unit' for the different level of teachers and not the department/subject as a ''Unit we are of the view that the entire advertisement has to go. There can be no two yardstick to apply reservation in different departments. We are of the view that confining the relief only to the respective subjects/departments for which the petitioners are the applicants and allowing the posts in the remaining subjects/departments of the University to be filled up treating the University as a ''Unit' would create further complication and would not only be impracticable, unworkable but also unfair and unreasonable. We are also directing the University to apply the reservation policy afresh in the light of the settled law. The University has to carry out fresh exercise of calculating the reservation for each department/subject. The relief, in our opinion, cannot be confined only to the department/subject in which the petitioners are the applicants."

21.The view taken in aforesaid judgment of the Division Bench of this Court, was affirmed in Vijay Prakash Bharti vs. Union of India and Others reported in (2019) 12 SCC 410.

22. In view thereof, I find no substance and merit in the present petition, which is hereby dismissed.

(Dinesh Kumar Singh, J.)

Order Date:-26.04.2023

Piyush/-