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2009 DIGILAW 3261 (ALL)

DINANATH v. STATE OF U. P.

2009-10-12

SUDHIR AGARWAL

body2009
JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri D.B. Mukharji for the petitioner, learned Standing Counsel representing respondents No. 1, 2, and 3 and Sri Jeevan Prakash Sharma for respondent No. 4. 2. The petitioner, already working as a Class IV employee in Neta Subhash Krishi Sainik Inter College, Banki, Vinod Nagar, Maharajganj (hereinafter referred to as “College”), has filed the present writ petition seeking the following reliefs : “(i) To issue a writ, order or direction in the nature of certiorari to quash the Notice Dt. 1.11.2007 published in Daily News Paper ‘’Amar Ujala” by which Respondent No. 4 is going to direct recruit the promotion quota post of Asstt. Clerk of the Institution. (ii) To issue a writ, order or direction in the nature of mandamus directing to Respondent Nos. 2 and 3 to promote the petitioner as Asstt. Clerk in the Institution, as he is only Class-IV employee who has requisite qualification for the post of Asstt. Clerk. (iii) To issue any other writ, order or direction which this Hon’ble Court may deem fit and proper under the circumstances of the case. (iv) To award costs of the Writ Petition to the Petitioner against the Respondents.” 3. The case of the petitioner is that there are four sanctioned posts of Class III, i.e., three posts of Clerk and one post of Head Clerk in the College out of which one post (Head Clerk) is already occupied by one Sri Hira Lal, promoted from the post of Clerk and another post of Clerk is occupied by Sri Surendra Lal Srivastava, a Class-IV employee promoted in promotion quota to Class III post. Another post, which fell vacant, he contended, in view of Regulation 2 Chapter III of the Regulations framed under U.P. Intermediate Education Act, 1921 ought to have been filled in by promotion inasmuch for the purpose of determining promotion quota, the post of Head Clerk has to be excluded and there being only three posts of Clerk, 50% have to be filled in by promotion. Since 50% of 3 posts of Clerk comes to 1.5 and fraction will go for promotion, therefore, two posts of Clerk have to be filled in by promotion and one by direct recruitment. 4. Since 50% of 3 posts of Clerk comes to 1.5 and fraction will go for promotion, therefore, two posts of Clerk have to be filled in by promotion and one by direct recruitment. 4. In the case in hand, the respondents have decided to fill in the post in question by direct recruitment and that too keeping it reserved for Other Backward Classes (in short “OBC”). Sri D.B. Mukharji submits that the advertisement published by respondent No. 4 for filling in the post in question by direct recruitment is illegal. He further submitted that in any case, the post of Clerk sought to be filled in by direct recruitment, cannot be kept reserved for OBC as that would exceed the quota of reservation prescribed for OBC which is only 27% under U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as “1994 Act”). 5. Learned counsel for the respondents, on the other hand, submitted that the present writ petition at the instance of the petitioner is not maintainable inasmuch the petitioner having been appointed as a Class-IV employee only on 5.6.2003, on the date of occurrence of vacancy he has served for less than five years therefore, was not eligible for promotion to Class-III post. He further submitted that in Regulation 2 (2) Chapter III, 50% post of Clerk and Head Clerk both have to be filled in by promotion and out of four posts, two are already occupied by persons promoted, the rest two are to be filled in by direct recruitment. Hence, the respondents have proceeded to fill in the post in question by direct recruitment. He further submitted that the cadre consists of four posts, one has been kept reserved for OBC since there is no OBC candidate in Class -III in the College. 6. Heard learned counsel for the parties and perused the record. Regulation 2 Chapter III which provides Reservation to Class III and Class IV posts reads as under : “2. (1) For the purpose of appointments of clerks and Forth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools. (2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. (2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employees possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to reject of the unfit. If any employee is aggrieved by any decision or order of the management committee in this respect then he can made representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management. Note—In calculating fifty per cent of posts parts less than half would be left and half or more than half post would be deemed as one.” 7. Regulation 2(2) clearly says that out of total sanctioned posts of Head Clerk and Clerks, 50% shall be filled in by promotion by already working Class III and Class IV employees provided the concerned employee possess requisite qualification and has completed five years’ continuous substantive service. The criteria for promotion is good service report and seniority subject to rejection of unfit. 8. This Court, in Jai Bhagwan Singh v. District Inspector of Schools, Gautambudh Nagar and others, (2006) 3 UPLBEC 2391 and Munna Lal v. Devendra Bahadur Singh Chandel and others, 2007 (4) AWC 4180 after considering Regulation 2 (2) held where the total sanctioned posts of Clerks and Head Clerk is three, the fraction of the post would go for the benefit of promotion and, therefore, out of three sanctioned posts, two shall be filled in by promotion and one by direct recruitment. However, that question would not be relevant for the purpose of this case since here the number of Class III posts is four and, therefore, two would fall in promotion quota and rest two for direct recruitment. 9. The question up for consideration is slightly different. However, that question would not be relevant for the purpose of this case since here the number of Class III posts is four and, therefore, two would fall in promotion quota and rest two for direct recruitment. 9. The question up for consideration is slightly different. The submission of learned Counsel for petitioner is that the post of Head Clerk being 100% a promotion post under the Regulations has to be excluded for the purpose of determining respective quota of promotion on the post of Clerk and this question I have to consider in the light of the relevant Regulation 2 Chapter III. It is clear from Regularization 2 (2) that in order to determine 50% promotion quota, the posts of Clerk and Head Clerk both have to be considered as a single unit. Promotion of a Clerk to the post of Head Clerk is also to be treated in promotion quota like promotion from Class IV to Class III. The submission of Sri Mukherji that the Head Clerk, being a different cadre, is available only for the persons working as Clerk and same cannot be treated at par with the post available for promotion to Class-IV to Class-III and, therefore, in order to form 50% quota for promotion, the post of Head Clerk has to be excluded is thoroughly misconceived and in the teeth of clear language of Regulation 2 (2) which provides that 50% promotion quota has to be filled in not only from Class-IV employees but also from Class-III employees and, therefore, if a Class III employee, i.e., a Clerk is promoted as Head Clerk, it is to be treated as a vacancy filled in by promotion and shall count while calculating 50% promotion quota in the entire cadre. It is no doubt true that for the purpose of pay scale etc. Head Clerk constitute a different cadre than the post of Clerk but for the purpose of determining promotion quota, Regulation 2(2) clearly provides that it is the entire sanctioned strength of Head Clerk and Clerks which would be taken into account for the purpose of determining 50% promotion quota. Accepting the submission of Sri Mukherji would mean that certain words in Regulation 2 (2) have to be treated redundant, which is not permissible. Accepting the submission of Sri Mukherji would mean that certain words in Regulation 2 (2) have to be treated redundant, which is not permissible. It is well settled principle of interpretation that if the statute is unambiguous, clear and does not admit of any doubt, the Court should interpret the same in a manner so as to give effect to each and every word contained therein without either adding or omitting any word therefrom. It is a harmonious and plain reading of the statute particularly when the language does not admit of any doubt. 10. One person having already been promoted from the post of Clerk to Head Clerk and another promoted from Class-IV to Class-III, two persons are already working against the promotion quota out of the total strength of four. Therefore, remaining two posts are to be filled in by direct recruitment. Therefore, I do not find any error or illegality in the decision of respondent No. 4 to fill in the vacancy in question by direct recruitment. 11. Now coming to the second aspect of the matter with respect to keeping the post in question reserved for OBC, I find that the vacancy cannot be kept reserved for OBC. For the purpose of reservation under 1994 Act, one has to keep the vacancies available for direct recruitment and promotion separately and the two cannot be clubbed together for the purpose of applying reservation under 1994 Act. This aspect has recently been considered in Civil Misc. Writ Petition No. 7591 of 2006, Nem Singh v. State of U.P. and others decided on 2.9.2009 wherein following earlier judgment of this Court in Smt. Pholpati Devi v. Smt. Asha Jaiswal and others, 2009(2) ADJ 90 and after referring to relevant passages therefrom, this Court held as under : “13. In view of the above exposition of law the clubbing of vacancies which were to be filled in by promotion alongwith those which were to be filled in by direct recruitment was impermissible in law and the impugned order having been passed ignoring this aspect of the matter is wholly illegal.” 12. In view of above exposition of law, unless there being four posts of Class III available for direct recruitment, reservation under 1994 Act for O.B.C. cannot be applied against any of the posts in Class III. In view of above exposition of law, unless there being four posts of Class III available for direct recruitment, reservation under 1994 Act for O.B.C. cannot be applied against any of the posts in Class III. The decision of the Management to the extent they propose to fill in the post in question by keeping it reserved for O.B.C. is, therefore, illegal and liable to be set aside. 13. In view of the above, the writ petition succeeds partly. The impugned advertisement insofar as it reserved the vacancy in question for O.B.C. is hereby quashed. The respondent No. 4 is directed to advertise the vacancy afresh for making recruitment treating the vacancy unreserved. However, the petitioner being not entitled for promotion, no effective relief can be granted to him. 14. No order as to costs. ————