Rajesh Kumar Dwivedi vs State Of U.P. Thru Secy. Sec. ...
2023 Latest Caselaw 9375 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 6
 

 
Case :- WRIT - A No. - 4952 of 2007
 

 
Petitioner :- Rajesh Kumar Dwivedi
 
Respondent :- State Of U.P. Thru Secy. Sec. Education And 3 Ors.
 
Counsel for Petitioner :- G.C. Verma
 
Counsel for Respondent :- C.S.C.,Ashish Mishra,P.K. Khare,R.C.Singh,Raj Deepak Chaudhary
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri G.C. Verma, learned counsel for the petitioner, learned Standing Counsel for respondent - State and Sri Raj Deepak Chaudhary, learned counsel for respondent No.5.

2. By means of present writ petition, the petitioner is challenging the orders dated 25.06.2007 and 05.07.2007 passed by respondent No.2 & 3 contained as annexure Nos.1&2 respectively as well as decision dated 23.06.2007 as mentioned in impugned order dated 25.06.2007 with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to grant approval for promotion of the petitioner w.e.f. 19.12.2006 and to pay salary for the post of Lecturer regularly along with arrears w.e.f. 19.12.2006.

3. Factual matrix of the case is that a post of Hindi Lecturer fallen vacant due to retirement of one Mr. K.K. Misra under under 50% promotion quota. In the institution, there are six sanctioned posts of Lecturers out of which, three posts of Lecturers are to be filled up by way of direct recruitment and three posts are to be filled up by way of promotion. Out of six posts, one post of Lecturer was already filled up from Scheduled Caste Category and one Mr. Parmeshwar Deen Chaudhary was working on the said post.

4. The committee of management passed a resolution on 19.12.2006 for grant of promotion to the petitioner on the post of Lecturer in Hindi. The papers were duly submitted before the District Inspector of Schools (DIOS) for its transmission to the Regional Selection Committee constituted under Section 12 of the Relevant Rules. The Regional Level Committee took decision in the matter, which was communicated by the Regional Joint Director of Education vide order dated 25.06.2007, whereby it has been held that the post against which the petitioner has been granted promotion, comes under reserved category of Scheduled caste, as per roster.

5. The DIOS vide letter dated 05.07.2007 communicated the decision of the Regional Level Committee / Regional Joint Director of Education dated 25.06.2007 and returned the papers of the petitioner for grant of promotion. The petitioner, feeling aggrieved, filed the present writ petition before this Court, wherein following interim order was passed on 20.08.2007:

"Notice on behalf of opposite parties no.1 to 3 has been accepted by the learned Standing Counsel, who prays for and is granted four weeks time to file counter affidavit. Two weeks thereafter is allowed to the counsel for the petitioner to file rejoinder affidavit. List thereafter.

In the meantime, operation of the impugned orders dated 25.6.2007 and 5.7.2007, contained in Annexure nos. 1 and 2 to the writ petition, shall remain stayed so far as it related to the petitioner and with respect to the post of Lecturer in Hindi in R.B.S.B., Singh Inter College Kamlapur, Sitapur."

6. In pursuance to the order passed by this Court, the petitioner was permitted to continue on the post of Lecturer in Hindi and operation of the impugned orders dated 25.06.2007 & 05.07.2007 was stayed.

7. Submission of learned counsel for the petitioner is that there are six posts of Lecturers duly sanctioned in the institution and under 50% promotion quota, there are only three posts, which is less than 5, therefore, in view of decision of the Full Bench in the case of Heera Lal Vs. State of U.P. and others;(2010) 3 UPLBEC 1761, there shall be no reservation against three vacancies in existence. His next submission is that in case reservation to the scheduled castes is permitted, which is 21%, it will exceed 25%. In support of his submissions, he placed reliance upon paragraph 32 of the judgment in the case of Heera Lal (Supra).

9. On the other hand, learned counsel for the respondents submitted that there are six posts and roster will apply against them. In view of above, one post shall be reserved for Scheduled Castes Category. Their next submission is that the impugned orders passed by Regional Level Committee as well as by the DIOS do not suffer from any infirmity or illegality and are just and valid.

10. I have considered the submissions advanced by learned counsel for the parties and perused the material on record.

11. To resolve the controversy involved in regard to applicability of roster of reservation against three vacancies available in the institution, relevant paragraph of the judgment in the case of Heera Lal (Supra) is being quoted below:

"12. The main plank of the argument on behalf of those opposing the application of the roster, rests on the ratio of the Division Bench decision in the case of Dr. Vishwajeet Singh (supra), contending that there is no occasion for the applicability of the rule of reservation with the help of any roster for scheduled caste candidates, as the percentage of reservation for scheduled castes which is 21%, envisages the existence of a minimum of total number of five posts in the cadre strength for calculating and applying the said percentage. It is urged by them that 21% can be calculated only if there are a minimum number of five posts for offering 21% reservation as it is only then that one post can be reserved for scheduled castes. It is submitted that if the posts are less than five, as in the present case which is three, the mathematical percentage as prescribed i.e. 21% is beyond calculation and there cannot be a fraction available amongst three posts for applying the said percentage."

12. The question referred to the larger Bench in the case of Heera Lal (Supra) is also being quoted below:

"9......A perusal of the said two Division Bench judgements in the case of Vishwajeet Singh (Supra) and Smt Pholpati (Supra) indicate that the applicability of the roster can be implemented wherever there are five or more than five posts to be filled up where reservation is being claimed under the Uttar Pradesh Public Services ( Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994.

The said decision clearly lays down : that there has to be existence of more than five posts for the purpose of applying roster otherwise it would violate the law in Indira Sahani's Case as reservation will then be in excess of 50%. Having perused the ratio of the two division Bench judgements it appears that the same has not been noticed in the decision in Mahendra Kumar Gond's case. The decision in the case of Dr. Vishwajeet was rendered on 20th April 09 whereas decision in the case of Pholpati Devi was rendered prior to that.

10. Both these decisions appear to have escaped the notice of the court and the applicability of the roster in the situation where there are only three posts available.

11. In this view of the ratio laid down in the two judgements of Dr Vishwajeet Singh and Smt. Pholpati Devi(Supra) there appears to be a contradictory position indicated in Mahendra Kumar Gond's case and as such the same deserves to be resolved by reference to a larger Bench.

12. Accordingly, in exercise of the powers conferred under Chapter 5 Rule 6 of the Allahabad High Court Rules, the following questions deserve to be referred to a larger Bench, in view of the position indicated above.

1. Whether the roster in respect of reservation can be applied with regard to the promotion in respect of class class III posts in Intermediate College, where the number of posts is less than five?

2. Whether there is a conflict between the ratio of the two Division Bench judgements of Mahendra Kumar Gond ( Supra) and Dr.Vishwajeet Singh (Supra) as referred to herein above, and if so, then which of the decisions lay down the law correctly ?"

13. The question, which was considered by the Full Bench in the case of Heera Lal (Supra) is also being quoted below:

"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 availably 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."

14. On perusal of the Full Bench judgment, it is evidently clear that reservation quota of Scheduled Castes is not applicable against three vacancies available in the institution and in case it is permitted, it will exceed 21% quota of reservation.

15. The argument advanced by learned counsel for the petitioner has merit and the writ petition deserves to be allowed, however, the arguments advanced by learned counsel for the respondents that the quota of reservation will apply against six available vacancies is erroneous in nature under Rule 10 of Rules of 1998. In the case in hand, 50% posts are to be filled up by way of direct recruitment and 50% posts shall be filled up by grant of promotion.

16. In view of the fact that there are six posts, three posts comes under direct recruitment quota and three posts comes under promotional quota. The quota of reservation shall apply separately to direct recruitment as well as to promotional quota. There is promotional quota against three posts only, therefore, roster for reservation of Scheduled Castes will not be made applicable.

17. In view of the reasons recorded above, the writ petition succeeds and is allowed.

18. The impugned orders dated 25.06.2007 and 05.07.2007 are hereby set aside.

19. The respondents are directed to pay salary to the petitioner w.e.f. 19.12.2006 till date within a period of one month from the date of production of a certified copy of this order. Consequential benefits shall also be provided to the petitioner.

20. Parties shall bear their own costs.

Order Date :- 31.3.2023

Adarsh K Singh