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2006 DIGILAW 2041 (ALL)

Anupam Misra v. State of U. P.

2006-08-22

NARAYAN SHUKLA

body2006
JUDGMENT : Narayan Shukla, J. Heard Mr. Amarendra Kumar Bajpai, learned Counsel for the Petitioner, learned standing counsel for opposite party No. 1, Mr. I.B. Singh, learned Counsel for opposite parties 2 and 3 and Mr. Manish Kumar, learned Counsel for the opposite party No. 4. 2. The Petitioner has challenged the decision taken by the State Government through Annexure-1 to the writ petition, dated 29th June, 2006 whereby the State Government has taken a decision to promote Shri Anjani Kumar, opposite party No.4 on the post of Assistant Engineer (Civil) within the category of scheduled caste in King George's Medical University, Lucknow. 3. Since the instant writ petition invites the attention of this Court to decide the question which is purely legal, with the consent of the parties I proceed to decide the matter finally on the basis of materials available on record. 4. The brief facts of the case are that the Petitioner is working as Junior Engineer (Civil) in the office of opposite party No. 2 i.e. King George's Medical University, Lucknow (hereinafter referred to as the 'University'). There are no rules in the Engineering Service Cadre of the University on account of which the University has adopted the service rules of Public Works Department to the State Government employees to govern the services of the Engineer. Admittedly, three posts of Assistant Engineer (Civil) are sanctioned in the University, out of which one post of Assistant Engineer (Civil) was filled up by way of direct recruitment and Mr. Dinesh Kumar Raj was appointed in the scheduled castes category on 10.12.2003. The second post of Assistant Engineer (Civil has been filled up by way of promotion of Ram Bilas Verma, who had been working as Junior Engineer (Civil) since 27.11.1989. Mr. Verma belongs to Other Backward category, but he was promoted in quota of general category. According to the Petitioner, now the third post is to be filled up by way of promotion from Junior Engineers belonging to General Category and the Petitioner is senior-most Junior Engineer and eligible in all respect for promotion to the post of Assistant Engineer (Civil). In its meeting dated 17th March, 2005 the Executive Council also passed a resolution to promote the Petitioner on the post of Assistant Engineer, the minutes of meeting is on record as Annexure-8 to the writ petition. In its meeting dated 17th March, 2005 the Executive Council also passed a resolution to promote the Petitioner on the post of Assistant Engineer, the minutes of meeting is on record as Annexure-8 to the writ petition. This decision of the Executive Council is based on the decision of Departmental Promotion Committee as on 5th February, 2005. The Departmental Promotion Committee recommended the Petitioner for promotion to the post of Assistant Engineer (Civil), the said recommendation is on record as Annexure-9 to the writ petition. The recommendation of the Departmental Promotion Committee has been re-discussed in the meeting of the Executive Council held on 8.12.2005 on the ground that two Executive Council members belonging to the scheduled caste category have asked for the re-discussion of the matter. However, the learned Counsel for the Petitioner submits that the same is absolutely with an ulterior motive to promote the opposite party No. 4, Sri Anjani Kumar, while in the letter dated 23.12.2005 the Dean of the University has forcefully asserted that one post has gone to the reserved category candidate i.e. Shri Dinesh Kumar Raj and second and third would necessarily go to unreserved category candidate. 5. It has also been pointed out that the candidature of Shri Anajani Kumar, opposite party No. 4 was duly considered in compliance of this Court's order, but since he is much junior to Mr. Ram Bilas Verma and the Petitioner, his name shall not be recommended for promotion. 6. Learned Counsel for the Petitioner submits that the impugned decision of the State Government is in utter violation of Articles 14 and 16 of the Constitution of India. 7. Relying upon the judgment of Hon'ble the Supreme Court rendered in the case of B.S. Gaur Vs. 6. Learned Counsel for the Petitioner submits that the impugned decision of the State Government is in utter violation of Articles 14 and 16 of the Constitution of India. 7. Relying upon the judgment of Hon'ble the Supreme Court rendered in the case of B.S. Gaur Vs. Union of India (UOI) and Others, (2001) 9 SCC 706 he submitted that the Hon'ble Supreme Court has held that where there are only three posts in the cadre and one of the three posts is occupied by a general candidate and the second by a member of the Scheduled Castes and, therefore, the third post could not be allowed to go to a reserved candidate and he submits that likewise in this case also there are only three posts, first post has been filled up by the Scheduled castes candidate and second by the general category candidate, now the third post cannot be allowed to go to a reserved candidate as it will be more than 50% reservation in violation of the rules framed for the purpose. 8. On the strength of the aforesaid facts and circumstances, the learned Counsel for the Petitioner submits that the impugned decision of the State Government is not sustainable in the eye of law. 9. A short counter affidavit has been filed on behalf of opposite party No. 4, in which it has been stated that the services of the Assistant Engineers are governed by the Uttar Pradesh Public Works Department Group 'B' Civil Engineer Service Rules, 2004 and as per provisions of the said Rules, it has been provided that 50% of posts shall be filled up by direct recruitment through the Commission and remaining 50% through promotion from amongst substantially appointed Junior Engineers (Civil) and Junior Engineers (Technical) who have completed 7 years of service. 10. In light of the provisions of the aforesaid rules, he submits that out of three posts one is to be filled up by way of direct recruitment and other two posts are to be filled up by way of promotion from amongst Junior Engineers (Civil). 10. In light of the provisions of the aforesaid rules, he submits that out of three posts one is to be filled up by way of direct recruitment and other two posts are to be filled up by way of promotion from amongst Junior Engineers (Civil). The post of direct recruitment being a single post no reservation had been applied and hence the appointment of Shri Dinesh Raj i.e. direct recruitment has nothing to do with the present case whether he has been appointed as reserved category candidate or unreserved candidate but as far as 2 posts are concerned which are to be filled up by promotion and as per the applicability of Reservation Act i.e. the Uttar Pradesh Act, 1994, one post is to be filled up by reserved category candidate and one post is to be filled up by unreserved category candidate. 11. He further submits that there is no reservation for the Backward Classes. The reservation is only for Scheduled Caste i.e. 21% and Scheduled Tribe i.e. 2% and first post is to be filled up by Scheduled Caste thereafter second, third, fourth and fifth post by general and so on. He has brought on record a Government order dated 10.10.1994 as Annexure-SCA-2 to the short counter-affidavit, which provides the roster system on the matter of promotion. He further submits that though Shri Ram Bilas Verma belongs to Backward class but he has been promoted as a general category candidate and he submits that under the promotion quota there are only two posts and since one has been filled up by the general category candidate and there is no reservation for other Backward class category, the third post is to be filled up by a reserved category candidate i.e. of the scheduled caste. 12. In support of his contention, the learned Counsel for the Respondent No. 4, Mr. Manish Kumar invited the attention of this Court towards some judgments of the Hon'ble Supreme Court which are referred hereunder. 13. In the case of S.G. Jaisinghani Vs. Union of India (UOI) and Others, AIR 1967 SC 1427 it has been held that the rule of determination of inter se seniority between direct recruitment and promotees was for consideration before the Hon'ble Supreme Court which has no concern with the matter and it speaks only with respect to reasonable classification which is not in dispute. 14. Union of India (UOI) and Others, AIR 1967 SC 1427 it has been held that the rule of determination of inter se seniority between direct recruitment and promotees was for consideration before the Hon'ble Supreme Court which has no concern with the matter and it speaks only with respect to reasonable classification which is not in dispute. 14. In the case of B.S. Gaur Vs. Union of India (UOI) and Others, the Hon'ble Supreme Court has held that the strength of the said cadre is of three posts and all are filled in by 100% promotion through Departmental Promotion Committee. On the basis of the submission that one of three posts is occupied by a general category candidate and one by scheduled castes candidate and third post should not be reserved for a member of scheduled castes category, the confirmation of the Appellant to the post of Senior Technical Assistant was set aside by the Tribunal. The Hon'ble Supreme Court has held that there is no dispute that there are only three posts in the cadre and one of the three posts is occupied by a general candidate and the second by a member of the Scheduled Castes and, therefore, the third post could not be allowed to go to a reserved candidate. This judgment does not give any favour to the Respondent No. 4. 15. I had occasion to go through the relevant rules, Government orders as well as decisions on the point which are relevant for discussion in the present matter and accordingly I hereby discuss those one by one. 16. To provide for the reservation in Public Services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens and for matters connected therewith or incidental thereto, the State Government has framed U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 for which the percentage of reservation in each and every category) i.e. Scheduled Castes, Scheduled Tribes and Other Backward Classes has been specified in Section 3(2) of the aforesaid Act. 17. 17. It has been provided that the reservation of vacancies for all categories of persons mentioned in Sub-section (1) shall not exceed, in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which recruitment is to be made. 18. In Sub-section (5) of Section 3, it has also been provided that the State Government shall for applying the reservation under Sub-section (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reservation points and the roster so issued shall be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in Sub-section (1) is achieved, and the operation of the roster and the running account shall, thereafter, come to an end. As and when a vacancy arises, thereafter in a public service or post the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster. 19. In Sub-section (7) of Section 3, it has been provided that if, on the date of commencement of this Act, reservation was in force under Government orders for appointment to posts to be filled by promotion, such Government orders shall continue to be applicable till they are modified or revoked. 20. The aforesaid Act has been amended by way of U.P. Act No. 1 of 2002 and in place of Sub-sections (1), (2) and (3) of Section 3, new Sub-Sections 3A and 3B have been substituted, whereby a proviso has been added in Sub-section (1) of Section 3 which provides that reservation of vacancies for all categories of persons mentioned in Sub-section (1) shall not exceed, in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which recruitment is to be made. 21. 21. The State Government has issued the Government order providing roster in exercise of power provided under Sub-section (5) of Section 3 of the aforesaid Act, 1994 in respect of direct recruitment whereby the first post in the roster has been reserved for the scheduled castes, second is for unreserved, third is for the Other Backward Classes, fourth is for unreserved and so on for 100 posts. With respect to the reservation on the matter of promotion, the State Government has issued a Government order dated 25th June, 2002 whereby to implement the reservation policy in the promotion a model roster of 100 posts have been prepared, in which the first post is reserved for the scheduled castes, second is for unreserved, third is for unreserved, fourth is for unreserved, fifth is for unreserved and so on. At Serial Nos. 49 to 98, two posts have been reserved for the scheduled castes. 22. In the Government order, it has also been provided that as per roster system reservation shall be provided by taking into account the whole cadre strength of service. Thus, according to the aforesaid Act as well as Government orders issued by the State Government providing roster for reservation, the whole cadre strength of service has to be taken into account. 23. Herein in the present matter, the strength of the Engineering cadre of Assistant Engineers is only of 3 posts. Accordingly, one post has to be filled up by way of direct recruitment and two posts by way of promotion as the scheme of the Act itself provides that the reservation shall not exceed 50% of the total vacancies. In the present matter, the first vacancy has been filled up by way of direct recruitment from the scheduled castes candidate and remaining two posts belonged to general category candidate and now the third post has to be filled up from the general category candidate. 24. Learned Counsel for the Respondent No. 4 submits that since from the promotion quota one post has been filled up by way of general category candidate, other has to be filled up from the reserved category candidate. He further submits that the Act of 1994 relates only for the direct appointment and it has no concern for the purpose of promotion. 25. A Constitution Bench of the Hon'ble Supreme Court in the case of R.K. Sabharwal and others Vs. He further submits that the Act of 1994 relates only for the direct appointment and it has no concern for the purpose of promotion. 25. A Constitution Bench of the Hon'ble Supreme Court in the case of R.K. Sabharwal and others Vs. State of Punjab and others, AIR 1995 SC 1371 has held that the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength, the concept of vacancy has no relevance in holding the percentage of reservation, the relevant paragraph 6 of which is reproduced hereunder: 6. The expressions 'posts' and 'vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation. 26. In view of the law laid down by the Hon'ble Supreme Court, it is clear that out of three posts of Assistant Engineers (Civil) in the cadre, the reservation scheme has to be applied taking into consideration that the same shall not exceed more than 50% of the total posts of the cadre and since the first post has already been filled up by the scheduled castes candidate, the other two posts are to be filled up from the unreserved candidates, it is meaningless as to whether by direct recruitment or by promotion and accordingly the third post in question i.e. the post of Assistant Engineer (Civil) has also to be filled up by the unreserved candidate. 27. In light of the verdict of the Hon'ble Supreme Court, I do not find any force in the submission of the learned Counsel for the Respondent No. 4. 28. 27. In light of the verdict of the Hon'ble Supreme Court, I do not find any force in the submission of the learned Counsel for the Respondent No. 4. 28. I summoned the record of the State Government as to what is the ground of decision impugned, from perusal of which I found that the State Government has assessed the reservation separately for the direct recruitment as well as for the promotion and after bifurcating the seat as 50% vacancies have to be filled up by way of promotion and 50% by way of direct recruitment, the State Government has taken into account the reservation quota of scheduled castes candidate in the instant matter out of 50% promotion quota and on that basis they have taken the stand that since out of the two, one promotion post has already been filled up by way of promotion by Mr. Ram Bilas Verma from the general category, the other post has to be filled up by a scheduled castes candidate. 29. I also called the Principal Secretary of the Department, in response of which Mr. Prashant Trivedi, Secretary of Medical Education Department appeared before the Court and submitted that the decision taken by the State Government is based on the opinion of the Law Department. 30. However, in view of the aforesaid facts and circumstances as well as law laid down by the Hon'ble Supreme Court, I do no find force in the submission of the learned Counsel for the Respondents and I arrive at conclusion that the post in question has to be filled up from the unreserved candidate. Accordingly, I find that the impugned decision of the State Government dated 29th June, 2006 (Annexure-1 to the writ petition) is not sustainable in the eye of law. 31. Accordingly, I find that the impugned decision of the State Government dated 29th June, 2006 (Annexure-1 to the writ petition) is not sustainable in the eye of law. 31. Under the circumstances, I hereby quash the impugned decision dated 29th June, 2006 (Annexure-1 to the writ petition) taken by the State Government as well as the resolution of the Executive Council taken in its meeting dated 8.12.2005 (Annexure 12 to the writ petition) and a writ of mandamus is issued to the authorities concerned to fill up the post in question from the unreserved candidate from amongst unreserved candidates who come within the zone of eligibility criteria providing that if the Petitioner comes within the zone of eligibility criteria for promotion to the post of Assistant Engineer (Civil), he shall be considered for promotion in accordance with law. In view of the aforesaid observations, the writ petition is disposed of finally.