Dinesh Kumar And Others ... vs State Of U.P. Through Secretary
2022 Latest Caselaw 2408 UK

                  IN HIGH COURT OF UTTARAKHAND
                            AT NAINITAL
                        Writ Petition No.180 of 2018 (S/S)

Dinesh Kumar and others                                               .....Petitioners
                                                Vs.

State of U.P. through Secretary, and others                           .....Respondents

Advocate: Mr. Bhagwat Mehra, Advocate for the petitioners.
          Mr. I.D. Paliwal, Additional C.S.C. for the State of U.P.

Hon'ble Sharad Kumar Sharma, J.

The petitioners in the present writ petition are presently working with the respondents department as class IV employees. The cadre of class IV employees acts, as a feeding cadre for consideration of promotion to be made on class III post and as per the Rules of 2001. The Rules as it had been modified by the State of Uttar Pradesh. on 22.12.2021 it had provided the source of promotion from class IV to class III employees, 15% posts was to be filled in from those candidates, who were having High School qualification and working as class IV employee and had completed five years of service and the 5% of the promotional quota, was reserved for Group D employees, who had worked for five years and had an educational qualification of intermediate. A classification by way of a distinction has been sought to be drawn by the counsel for the petitioner, that the embargo of having a higher qualification which would be falling within the ambit of Sub Rule (2) of Rule 5 of the Rules of 2001, cannot create any embargo as such, for considering the claim of promotion for petitioners, as against the 15% promotional quota made available under Sub Rule (1) of Rule 5 of 2001.

2. This argument has been sought to be refuted by the learned Additional C.S.C. for the State of U.P., contending thereof, that since there was a clear two independent classification of promotional quotas, based on the respective educational qualification and since the ensuing process of promotion was confined to be made from amongst those class IV employees, who were having High School certificate and were to be only considered against 15% quota of promotion to the promotional class III posts. The petitioners, who are

admittedly are working with the respondents as class IV employee, who had already completed five years of their services as class IV employee, are admittedly the holders of an Intermediate certificate.

3. The grievance of the petitioners is that despite of the aforesaid admitted fact, the only distinction, which has been drawn to make them ineligible, to be considered for the percentage of promotional quota which has been provided under Sub Clause (1) of Clause 5 of the Rules of 2001, because of the qualification possessed by them, for which an independent percentage of promotion quota has been fixed by Sub Clause (2) of Rule 5 of the Rules of 2001.

4. In reply to it, the learned counsel for the petitioners had submitted that, the issue as to whether the candidates who are falling under Sub Rule (2) of Rule 5 of the Rules of 2001, can at all be rendered to be non-suited to be considered for promotion against the quota of promotional post available under Sub Rule (1) of Rule 5 of the Rules of 2001; came up as a subject matter of writ petition, in Writ Petition No.457 of 2011 (S/S) Smt. Hema Negi vs. State of Uttar Pradesh and others and the Coordinate Bench of this Court while considering the aforesaid implications of the inter play of Sub Rule (5)1 of Rule (5)2 of the Rules of 2001 had considered the aspect and recorded a finding and its reasoning in para 7 and 8 of the judgment, which is extracted hereunder:-

"7. The petitioner possesses High School and Intermediate qualification. The contention of the respondents that a person having Intermediate qualification cannot appear against the posts reserved for the candidates having High School qualification cannot be sustained. This Court is of the considered view that a person who has Intermediate qualification has also High School qualifications, and therefore, such a person is liable to be considered for the whole 20% quota i.e. 5% for the Intermediate qualification & 15% for the High School qualification.

8. This Court in a similar controversy, rendered in Writ Petition No.417 (SS) of 2008, has held that where there is a break-up of 5% for Intermediate and 15% for High School, it would not mean that those who applied for 5% Intermediate quota, can also compete for the High School quota. The operative portion of the judgment rendered in Writ Petition No.417 (SS) of 2008 which is relevant for our purpose reads as under:-

"In view of above, this Court is of the opinion that the petitioners are having Intermediate and High School qualifications and if this higher qualification is because of the fact that they did High School, as this higher qualification can only be 3 attained after doing High School. In other words, the petitioners are also having High School qualification. Since they are having both qualifications (i.e. High School and Intermediate) they are eligible for promotion under the High School Quota as well. The non- consideration for promotion of the petitioners under the High School quota by the respondents is not justified. This Court has been informed that as on today, only one candidate under the Intermediate quota has been promoted and remaining posts, which were to be filled by promotion, are lying vacant. Let the promotion exercise for Class III posts be completed expeditiously in which the petitioners would be considered under the High School Quota as well."

5. In fact the Coordinate Bench of this Court in its judgment of 28.04.2014, has dealt with the similar issue based upon the earlier judgment which was rendered by the Coordinate Bench in Writ Petition No.417 of 2008 (S/S) Mohd. Irshad & another vs. District Judge, Champawat & another, the relevant part of which has been extracted in para 8 of the judgment as already extracted above that the breakup of 5% for Intermediate and 15% for High School qualified candidates, it would not mean that those who have applied for 5% Intermediate, quota would be rendered to be ineligible to be considered for promotion as against 15% quota which has been provided under Sub Rule (1) of Rule 5 of the Rules of 2001.

6. It is a statement made at the bar by the respective counsels, that the judgment as rendered in Writ Petition No.417 of 2008 (S/S) and that of Writ Petition No.457 of 2011 (S/S) Smt. Hema Negi vs. State of U.P. through Secretary, Irrigation Department & others, where the issue pertaining to the entitlement of the candidates falling within the zone of consideration of promotion under Sub Rule (2) of Rule 5 of the Rules of 2001 due to their Intermediate qualification, had been made available to be considered for promotion on class III post under Sub Rule (1) of Rule 5 of the Rules of 2001, has been affirmed, applied and has attained its finality, no artificial embargo as such could be created in considering the petitioners' claim for promotion, though despite of the fact that they are an Intermediate certificate holder, but

since they fulfil the other eligibility provided under Rule 5 of the Rules of 2001, they cannot be rendered to be non suited to be considered for promotion merely because of the fact that they are holding an Intermediate certificate because of the classification, which has been dealt with in para 8 of the judgment of the Coordinate Bench rendered on 28.04.2014.

7. In that eventuality, this writ petition too would stand allowed under the same terms of para 11 of the judgment dated 28.04.2014, as it was rendered in Writ Petition No.457 of 2011 (S/S). The ultimate conclusion drawn therein is contained in para 11, which is extracted hereunder:-

"11. In view thereof, writ petition is allowed. Since the private respondents have already been selected and appointed, this Court, therefore, directs the concerned respondent to hold an examination of the petitioner including typing test and evaluate all the credentials of the petitioner and in case she succeeds, give her appointment on an existing vacancy. However, if no vacancy is available, then as soon as next vacancy comes up in the department which has to be filled by way of departmental promotion, 4 the petitioner's case for promotion shall be considered first, provided the petitioner qualifies such an examination."

8. Hence, this writ petition too would stand allowed under the same terms and conditions. The petitioners' candidature would be considered for promotion as against the process of promotion which is being resorted to for filling the post against 15% quota which would be falling under Sub Rule (1) of Rule 5 of the Rules of 2001 and the petitioners will not be rendered non suited, because they hold a higher qualification of Intermediate, as the issue stands settled by the judgment of the Coordinate Benches of this Court. Thus the writ petition would stand allowed in the same terms of the extract of the observations made in para 11 of the judgment dated 28.04.2014.

(Sharad Kumar Sharma, J.) 02.08.2022 Arti