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Allahabad High Court · body

2009 DIGILAW 251 (ALL)

RAJ KISHOR SINGH v. STATE OF U P

2009-01-23

R.K.AGRAWAL, S.P.MEHROTRA

body2009
S. P. MEHROTRA, J. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner seeks the following reliefs : a. Issue writ, order or direction in the nature of certiorari quashing the letter/communication dated 10- 11-2008 issued by the Uttar Pradesh Higher Education Service Commission, Allahabad, which is Annexure No. 6 to this writ petition. b. Issue writ, order or direction in the nature of certiorari quashing the letter/communication dated 05- 12-2008 issued by the Director Higher Education, Uttar Pradesh, Allahabad, which is Annexure No. 7 to the writ petition. c. Issue writ, order or direction in the nature of mandamus directing the Uttar Pradesh Higher Education Service Commission, Allahabad to work out the vacancies for Ex-servicemen on 35 vacancies available for teacher/lecturers in Political Science. d. Issue writ, order or direction in the nature of mandamus directing the Higher Education Service Commission, Uttar Pradesh, Allahabad to process the matter about interview of the petitioner in the process of selection of Advertisement No. 41 dated 07-02-2007 as Ex-servicemen by calculating number of vacancies in Political Science subject. e. Issue such other or further order or direction as this Honble Court may deem fit and proper in the circumstances of the case. f. To award the cost of petition in favour of the petitioner. 2. Briefly stated the facts giving rise to the present writ petition are as follows : The petitioner is an Ex-serviceman. The U. P. Higher Education Service Commission advertised for selection of lecturers in various Degree Colleges in the State of Uttar Pradesh by way of Advertisement No. 41 dated 07-02-2007. 3. In the said advertisement, it was stated that the reservation to the physically handicapped, Dependants of Freedom Fighters and Ex-servicemen will be available as per the Act and the Rules framed in this regard by the State Government. 4. It appears that the petitioner was not given the benefit of reservation available for Ex-servicemen and he was treated as a person belonging to the general category. He was not called for interview by the Commission as the quality point marks was less than the last person called for interview for the post of lecturer in Political Science for which post the petitioner had applied. 5. He was not called for interview by the Commission as the quality point marks was less than the last person called for interview for the post of lecturer in Political Science for which post the petitioner had applied. 5. The petitioner has approached this Court claiming reservation of Ex-Army man provided under the U. P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex- Servicemen) Act, 1993, as amended from time to time. 6. According to the petitioner, 5% reservation has been provided for Ex-Servicemen and, therefore, the petitioner ought to have been called for interview. The petitioner had made an application under Right to Information Act, 2005 seeking an information as to whether any reservation has been provided for Ex-Servicemen or not, to which the Commission vide letter dated 10-11-2008 replied that no reservation has been provided for Ex-Servicemen. 7. We have heard Sri V. B. Tiwari, learned counsel appearing for the petitioner, learned Standing Counsel appearing for respondent Nos. 1 and 2, and Sri H. N. Singh, learned counsel appearing for respondent No. 3. 8. Learned counsel for the petitioner submitted that as the State Government had not specified Group-A post and Group-B post in respect of the teachers/lecturers in Government Aided Private Degree Colleges, the post of lecturer cannot be treated as one falling under Group-A and Group-B posts and, therefore, 5% reservation would be applicable. He further submitted that the Commission had categorically stated in the reply dated 10-11-2008 that no reservation can be given to the Ex-Army men without specifying that the post of lecturer fell either under Group-A or under Group-B post and, therefore, the letter dated 10-11-2008 should be judged on the basis of the reasoning given therein and not by taking into consideration the submissions or the arguments to be advanced by the counsel appearing for the respondents or any other Government Order or Statutory Notification. He further submitted that the State Government had framed U. P. Higher Education (Group-A) Service Rules, 1985 in which the post of lecturer in Government Degree Colleges has fallen in category V Group-A post, whereas reservation to such Ex-servicemen can be excluded by the State Government specifically in respect of the post to be filled in the Government Aided Private Degree Colleges. In support of his plea that the post of lecturer in Government Aided Private Degree Colleges is not a Group-A post and also in respect of the various pleas raised above, the following decisions have been relied by the counsel for the petitioner. 1. Mohinder Singh Gill and another Vs. The Chief Election Commissioner, 1978 AIR SC 851. 2. Brijendra Deo Misra Vs. Public Service Commission U. P. , Allahabad 1997, Vol. 1, LBESR 733 (All ). 3. Indian Railway SAS Staff Association and others Vs. Union of India and others, AIR 1998 SC 805 . 4. Civil Misc. Writ Petition No. 12603 of 2003, Dr. Ravindra Kumar Pandey Vs. State of U. P. and others, decided on 03-07-2006. 5. State of U. P. and another Vs. Pawan Kumar Tiwari and others, (2005) 2 SCC 10 . 9. The learned Standing Counsel, on the other hand, submitted that the post of lecturer in a Government Aided Private Degree Colleges carries the same pay scale and all other emoluments as of a lecturer in Government Degree Colleges and they are treated at par. The post of a lecturer in Government Degree Colleges falls under Group- A post and, therefore, the post of lecturer in Government Aided Private Degree Colleges is also treated as falling under Group-A post. 10. Sri H. N. Singh, learned counsel appearing for the Commission however, submitted that the post of lecturer in Government Aided Private Degree Colleges being similar to the post of lecturer in Government Degree Colleges, the same criteria in the case of the petitioner should be applied. In the alternative, he submitted that in view of Clause 2 (d-1), inserted by the U. P. Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 (Amendment) Act, 1999, if the post of Group-A or Group-B has been specified by the State Government then such post would not be available for applying 5 % reservation for Ex-Army personnel. 11. Pointing out to the Government Order dated 07-10-2003, wherein the State Government has specified the various posts relating to its employee according to the pay- scale, he submitted that as pay-scale of lecturer of Government Aided Private Degree Colleges is Rs. 8000-13500, which would fall under Group-B, and the benefit of reservation for Ex-Army men is not admissible. 12. 11. Pointing out to the Government Order dated 07-10-2003, wherein the State Government has specified the various posts relating to its employee according to the pay- scale, he submitted that as pay-scale of lecturer of Government Aided Private Degree Colleges is Rs. 8000-13500, which would fall under Group-B, and the benefit of reservation for Ex-Army men is not admissible. 12. In rejoinder, Sri Tiwari, learned counsel for the petitioner submitted that the Government Order dated 07-10-2003 is applicable only to Government employees and cannot be applied to lecturer in Government Aided Private Degree Colleges. 13. We have given our anxious consideration to the various plea raised by the learned counsel for the parties. We find that in the Advertisement No. 41 dated 07-02-2003 published by the Commission it has been mentioned that reservation to physically disabled, dependents of Freedom Fighters and Ex-Army personnel would be available as per the Act and the Rules framed by the State Government. The submission that as in the advertisement, reservation was provided for Ex-Army men in the selection for the post of lecturer in Government Aided Private Degree College, the Commission is bound to provide reservation to Ex-Army men is mis-conceived. If the Act provides the benefit of reservation to Ex-Army men to post other than Group-A and Group-B post and if the post of lecturer falls either under Group-A and Group- B then the reservation for Ex-Army personnel is not available. 14. So far as the question as to whether the post of lecturer in Government Aided Private Degree Colleges is of Group-A or the Group-B post is concerned, we find that the case set up by the petitioner before us is that the post of lecturer in Government Aided Private Degree Colleges does not fall within Group-A or Group-B post, is not correct. The pay scale and the emoluments and other benefits given to a lecturer in the Government Aided Private Degree Colleges is the same which is provided to a lecturer of Government Degree Colleges which has been specified as Group-A post. The pay scale and the emoluments and other benefits given to a lecturer in the Government Aided Private Degree Colleges is the same which is provided to a lecturer of Government Degree Colleges which has been specified as Group-A post. Even assuming if the post of a lecture in Government Aided Private Degree Colleges is not a Group-A post then in view of the classification of post made by the State Government vide Government Order dated 07-02-2003 on the basis of pay scale would come under Group-B post, therefore, in either way the benefit of reservation of 5% for Ex-Army men is not available. The plea that the Government order dated 07-02-2003 is not applicable to lecturer in Degree Colleges is wholly mis-conceived. From a reading of Section 2 (d-1) of the Act, it is absolutely clear that the Group-A and Group-B posts is to be specified by the State Government from time to time. The specification has been made in the Government Order dated 07-02- 2003 which would also be applicable for lecturer and other person unless specified otherwise. 15. Coming to the various decisions cited by the learned counsel for the petitioner, we find that in the decision of the Apex Court in the case of Mohinder Singh Gill (supra) it has been held as follows : "the second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. " 16. In the present case, we find that the Commission had given reply to an information sought for by the petitioner under Right to Information Act, 2005. The order has not been passed either in a quasi judicial or an administrative function, therefore, the principle initiated by the Apex Court in the aforesaid case would not apply. The petitioner had asked as to whether any reservation has been given to Ex-Army men or not, to which a reply has been given that no reservation has been made. The order has not been passed either in a quasi judicial or an administrative function, therefore, the principle initiated by the Apex Court in the aforesaid case would not apply. The petitioner had asked as to whether any reservation has been given to Ex-Army men or not, to which a reply has been given that no reservation has been made. There is no question of any reasons being given and therefore, we can test its validity on the basis of the arguments by the learned counsel for the parties as also on the statutory notifications, government order issued thereunder. 17. Coming to the case of Brijendra Deo Misra (supra) this Court has held that all Ex-servicemen, who applied against their reservation quota have to be treated as person belonging to the one and the same class and all of them to be considered against all the vacancies reserved for them strictly on the basis of the merit irrespective of the caste/class to which they belong. In the present case, as there is no reservation for Ex-servicemen, the decision laid down in the aforesaid case would have no application. 18. In the case of Indian Railway SAS Staff Association (supra), the Apex Court had considered the criteria of classification of the posts into gazetted or non-gazetted and has held that it cannot be done purely on the basis of scale of pay and in doing so other criteria and emoluments have been taken into consideration. The Classification of posts in Group-A and Group-B regarding criteria of pay-scale is not challenged in the present writ petition. Moreover, we are not called upon to adjudicate upon the question as to whether the classification of post on the basis of pay scale has been validly made for Group-A or Group-B posts. 19. In the case of Pawan Kumar Tiwari and others (supra), the Apex Court has held that the rule of rounding off is based on logic and common sense and no such question arises in the present case. 20. In the case of Dr. Ravindra Kumar Pandey (supra), the Division Bench was considering the case of horizontal reservation for physically handicapped candidates and it has held that it was not necessary for the Director to specify reservation of any vacancy for physically handicapped while issuing notification. The aforesaid decision does not advance the cause of the petitioner. 21. 20. In the case of Dr. Ravindra Kumar Pandey (supra), the Division Bench was considering the case of horizontal reservation for physically handicapped candidates and it has held that it was not necessary for the Director to specify reservation of any vacancy for physically handicapped while issuing notification. The aforesaid decision does not advance the cause of the petitioner. 21. In view of the foregoing discussions, we are of the considered opinion that the Commission had rightly not given any reservation for Ex-Army men on the post in lecturer in the Government Aided Private Degree College. The Writ petition lacks merits and is dismissed in limine. .