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2009 DIGILAW 3218 (ALL)

HEERA LAL v. STATE OF U. P.

2009-10-07

A.P.SAHI

body2009
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioner is a class IV employee in an Intermediate College governed by the provisions of Intermediate Education Act 1921 and the Regulations framed thereunder. 2. The petitioner has questioned the compassionate appointment of respondent No. 6 on the ground that the post in question namely the post of assistant clerk has to be filled up by promotion in view of the provisions contained in Chapter III Rule 2 of the Regulations framed under the U.P. Intermediate Education Act 1921. 3. It is undisputed that there are three posts of clerks including the post of head clerk in the institution. The petitioner contends that no post of clerk has been filled up by promotion and the post which has fallen vacant on account of the retirement of head clerk on 31.1.2007, the assistant clerk has already been promoted, as a result whereof the other post of assistant clerk under 50% quota is also liable to be filled up by way of promotion. The petitioner further contends that he belongs to the Scheduled Caste category and as such is also entitled to be promoted extending the benefit of reservation for Scheduled Castes. 4. There can be no dispute that the post of promotion if available, has to be filled up in accordance with the aforesaid Regulations. The only question which deserves to be determined is as to whether the petitioner can claim the benefit of reservation for being promoted on the post in question or not. Learned counsel for the petitioner has relied upon a Division Bench decision of this Court in the case of Mahendra Kumar Gond v. District Inspector of Schools, Azamgarh and others, 2009 (6) ADJ 674 , where such a claim of promotion by way of reservation has been explained keeping in view the Government Order dated 18th December 1990 as also the policy of reservation for Scheduled Castes and Scheduled Tribes, under the Uttar Pradesh Public Services ( Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act 1994. 5. Relying upon the aforesaid judgement learned counsel for the petitioner contends that the petitioner is entitled for promotion as a reserve category candidate. 5. Relying upon the aforesaid judgement learned counsel for the petitioner contends that the petitioner is entitled for promotion as a reserve category candidate. The Division Bench decision relying upon the Apex Court decision of M. Nagrajan and others v Union of India and others, AIR, 2007 SC 71 and in the case of R.K.Sabharwal reported in 1995 AIR SCW 1371, held that if a class IV employee of SC category is available for promotion then keeping in view the aforesaid provisions as pointed out herein above, the benefit of reservation has to be extended. 6. In the said case also there were three posts of clerks and therefore it is contended that the case of the petitioner being identical, such benefit to the petitioner deserves to be extended. 7. Learned Standing Counsel Sri K.K. Chand on the other hand contends that the decision in the case of Mahendra Kumar Gond (supra), the Court appears to have proceeded on the presumption that the roster can be applied even if there are three posts but there is no elaborate discussion in the said decision. It will be appropriate to refer to two decisions which have been rendered by this Court in the case of Dr.Vishwajeet Singh v State of UPLBEC, 2009(4) ADJ 373 and Smt. Pholpati Devi v Smt Asha Jaiswal and others, 2009(2) ADJ 90 . 8. Sri K.K. Chand has invited the attention of this Court to para 78 and 79 of the decision in Vishwajeet Singh’s case (supra), which is quoted herein below : “78. Now example of 3 posts cadre is taken. If in 3 cadre posts, one post is reserved for Scheduled Castes that will be 33% reservation or one post is reserved for other Backward Class that shall be again reservation which is against the percentage prescribed under sub-section (1) of Section 3. Now, example of 4 cadre posts is taken. With regard to 4 posts in one stream recently a Division Bench of this Court has considered the question of applicability of reservation in the case of Smt. Pholpati Devi v Smt. Asha Jaiswal and others, 2009 (2) ADJ 90 . The said case was with regard to Intermediate College, where there were seven posts of Lecturers. With regard to 4 posts in one stream recently a Division Bench of this Court has considered the question of applicability of reservation in the case of Smt. Pholpati Devi v Smt. Asha Jaiswal and others, 2009 (2) ADJ 90 . The said case was with regard to Intermediate College, where there were seven posts of Lecturers. The Division Bench took the view that 50% posts, which were reserved for promotion shall be at best 4 out of 7 and out of 4 posts no post can be reserved for Scheduled Castes since reservation of Scheduled castes is only 21%. The Division Bench laid down that even when there are 4 posts one post can not be reserved for Scheduled Castes since reservation of one post shall amount to 25% reservation which shall be exceeding the prescribed 21% reservation under Section 3 of 1994 Act. Following was laid down in paragraphs 6, 7 and 8 : “6. However, there is another aspect of the matter which also goes to the root of the case that in any case, the appointment of respondent No. 1 treating the vacancy reserved for Scheduled Castes could not have been made and, therefore, the ultimate conclusion drawn by Hon’ble Single Judge that the writ petition has to be allowed would have to be upheld. 7. In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at best four posts would have been availed for one source of recruitment, i.e. direct recruitment or promotion. The reservation for Scheduled Castes is 21%. If we treat one of the vacancies in either of the source of recruitment in the institution reserved for Scheduled Castes, it would be more than 21%. The Apex Court in R.S.Garg v. State of U.P. and others, 2006(6) SCC 430 , has held as under : “40. We are not concerned with the reasonableness or otherwise of percentage of reservation. 21% of the posts have been reserved for Scheduled Tribes candidates by the State itself. It thus, can not exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. We are not concerned with the reasonableness or otherwise of percentage of reservation. 21% of the posts have been reserved for Scheduled Tribes candidates by the State itself. It thus, can not exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements.” 8. Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it can not be exceeded thereto. In the case in hand, one of the vacancy if treated to be reserved for Scheduled Castes candidate out of four vacancies, the reservation would come to 25% which would exceed the maximum extent of reservation prescribed for Scheduled Castes candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent No. 1 treating one post of the lecturer reserved for Scheduled Castes in promotion quota, therefore, was illegal and has rightly been set aside by Hon’ble Single Judge.” 79. In 4 cadre posts, if one post is reserved for Scheduled Castes then reservation for Scheduled Castes be 25% which is impermissible. However, if one post is treated to be reserved for Other Backward Class then reservation for Other Backward Class shall be only 25% i.e. within 27% as prescribed under sub section (1) of Section 3. Thus, out of four posts, one post can be validly reserved for Other Backward Class. Now an example of five posts cadre is taken. For five posts cadre, if one post is reserved for Scheduled Caste that will be 20% and will be within 21% as prescribed under sub-section (1) of Section 3. One post for Other Backward Class can also be very well reserved out of five cadre posts since it shall be within the 27% as prescribed. Thus, for giving reservation to Scheduled Castes and other Backward Class, it is clear that athere has to be five posts in a cadre. In the roster point, the first point which comes for Scheduled Tribes is at Serial No. 47. Thus, for giving reservation to Scheduled Castes and other Backward Class, it is clear that athere has to be five posts in a cadre. In the roster point, the first point which comes for Scheduled Tribes is at Serial No. 47. Thus, even according to roster, Scheduled Tribes can get reservation at the 47th post. The above view of ours is fully supported by the judgement of the Supreme Court in the case of R.S.Garg v. State of U.P. and others, (2006) 6 SCC 430 . The facts of R.S.Garg case needs to be noted in some detail. In the aforesaid judgement, both the appellant and respondents were working as Assistant Directors. The appellant having been appointed in the year 1972 whereas the third respondent was appointed on 13.1.1987 on adhoc basis. There were six posts of Deputy Director of Factories in the State of U.P. out of which four posts were designated of Deputy Director of Factories (Administration), one as Deputy Director of Factories (Chemical) and one Deputy Director of Factories (Engineering). The post of Assistant Director of Factories was the feeder post. The Government converted the post of Deputy Director of Factories (Chemical) to Deputy Director of Factories (Administration). The third respondent was promoted as Deputy Director of Factories (Administration) as a reserved category candidate, which promotion was challenged in the Supreme Court. One of the grounds of challenge was that reservation to the post of Scheduled Castes was illegal and unjust by reason thereof percentage of reservation for promotion can not be raised from 21 to 33%. The contention raised before the Apex Court has been noted in paragraph 6 of the judgement to the following effect : “6 The said writ petition had been dismissed by the impugned judgement. The contentions raised before the High Court as also before us, on behalf of the appellant are : (i) The 3rd respondent was illegally appointed as Assistant Director of Factories as his services were regularised without referring the matter to the Public Service Commission as was required by Rule 5(iii) of the 1992 Rules; (ii) The order of promotion passed in favour of the 3rd respondent was malafide. (iii) The purported conversion of the post of Deputy Director of Factories Admn) being contrary to the 1992 Rules and having been done with a view to favour the 3rd respondent, was illegal; (iv) The 3rd respondent was not eligible to be promoted, as he did not complete 5 years’ substantive service on the date of selection, i.e., in the year 1997 in terms of Rule 5(iii); (v) Reservation to the post in favour of a Scheduled Caste was illegal and unjust by reason thereof the percent age of reservation in promotion would be raised from 21% to 33%. (vi) The post of Deputy Director of Factories (Administration) has already been occupied by a candidate belonging to the reserved category, namely Shri Ghanshyam Singh.” 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. 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. Accordingly, let the papers be laid before Hon. the Chief Justice for constituting a larger Bench, in order to resolve the aforesaid conflict. 14. The appointment if made during the pendency of the writ petition shall abide by the decision in the writ petition. ————