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2010 DIGILAW 2056 (ALL)

Yashwant Kumar v. State of U. P. & Ors.

2010-07-14

KASHI NATH PANDEY, SUNIL AMBWANI

body2010
Hon'ble Kashi Nath Pandey, J.:- The writ petitioner is a graduate engineer. He applied for and was selected in an open competition by the Public Services Commission U.P. as Assistant Engineer, in Uttar Pradesh (Centralized) Service in Scheduled Caste category and was appointed as Assistant Engineer, Nagar Nigam, Kanpur Nagar, vide appointment letter dated 21.5.1994. He was promoted as Executive Engineer in the year 2001 and is placed in the combined seniority list of the Uttar Pradesh Palika (Kendriya) Abhiyantran (Pravar) Sewa, notified on 21.1.1999 at serial no. 35. By this writ petition, he has prayed for a direction to the respondents to consider him for promotion under the Rules and Government Order dated 30.1.2003 to the post of Chief Engineer, in the reserved category. He has also prayed for a direction to the respondents not to change the status of the petitioner and to adjust him at other place. We have heard Shri Shishir Kumar, Advocate for the petitioner. Shri Pankaj Saxena, Standing Counsel appears for the State respondents. With the consent of parties, the writ petition was heard. Rule 20 of the U.P. Palika (Centralized) Services Rules, 1966 provides for recruitment by promotion. By the Government Order dated 25.5.1979, the Governor of Uttar Pradesh, in exercise of the powers vested in him under Rule 12 of the Rules of 1966, provided for eligibility for promotion to the post of Assistant Engineer, Executive Engineer and Chief City Engineer. For Executive Engineer, the Assistant Engineer is required to complete 7 years of continuous service including adhoc, temporary and officiating service. For promotion as Chief City Engineer, the Executive Engineer is required to complete 15 years of service as Executive Engineer in Centralized Service on 1st July of the recruitment year, including the continuous adhoc, temporary and officiating service. The Government Order dated 25.5.1979 was revised by the Governor of Uttar Pradesh, vide Government order dated 30.1.2003 amending the eligibility conditions. For Chief Engineer the Executive Engineer is now required to complete 15 years of service on 1st July of the calender year in which the selection is held, including the services as Assistant Engineer and Executive Engineer, and which may include continuous, adhoc, temporary and officiating service. From the pleadings we find that there are 12 sanctioned posts of Chief Engineer in the Palika Centralized Service. From the pleadings we find that there are 12 sanctioned posts of Chief Engineer in the Palika Centralized Service. At present 09 persons, including 02 belonging to Scheduled Caste namely Shri Jitendra Ken at Varanasi and Shri R.K. Varma at Aligarh are working on the posts. Three posts one each at Districts Bareilly, Ghaziabad and Meerut, are vacant. The petitioner filed representations dated 24.10.2008; 11.6.2009 and 10.8.2009, with a complaint, that inspite of his eligibility, he was superseded by one Shri Ram Kewal Prasad at serial No. 95 in the seniority list in the reserved category. Shri Ram Kewal Prasad was promoted to the post of Chief Engineer on 4.8.2003, illegally superseding the petitioner and in any case since Shri Ram Kewal Prasad had retired in June, 2009, there is one vacancy out of 12 posts of Chief Engineer, for Scheduled Caste category. Shri Shishir Kumar submits that even if the petitioner was not treated to be eligible in the year 2003, on the ground that he had completed only 09 year's service by them, as against fifteen years, he was eligible to be considered on the vacancy caused by retirement of Shri Ram Kewal Prasad and was entitled to be considered for promotion after completing 15 years of service on 1st July 2010, by the Departmental Promotion Committee, which will meet in June, 2010. Shri Shishir Kumar would further submit that the petitioner clearly falls within the zone of consideration under the eligibility criteria and thus it is obligatory for the respondents to have considered his candidature by applying the criteria laid down under Rule 20 of the Rules of 1966. The petitioner has a fundamental right to be promoted. Out of 12 posts, the reservation for Scheduled Caste under the U.P. Public Services (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Class) Act, 1994, being 21%, the number of posts for reservation, with fraction, would be 2.52. He submits that principles of rounding of will be applicable, by which 03 posts out of 12 have to be reserved for eligible scheduled caste Executive Engineer to be promoted as Chief Engineer. He submits that even otherwise the roster applicable for promotions vide Government order dated 25.6.2002 provides for 1st, 6th, and 11th vacancy to be filled by the Scheduled Caste candidates. He submits that even otherwise the roster applicable for promotions vide Government order dated 25.6.2002 provides for 1st, 6th, and 11th vacancy to be filled by the Scheduled Caste candidates. The roster has to be applied in accordance with the Government order dated 25.6.2002, applying the principle laid down in R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745 , that a running account has to be maintained to apply reservation on roster points and thus the appointment on the 11th vacancy has to be given to a Scheduled Caste candidate. In the counter affidavit of Shri Atma Ram Verma, Under Secretary, Nagar Vikas Vibhag, U.P. Government, it is stated in paragraph 8, that out of 12 posts under the UP Palika Centralized Service, 02 posts come under the purview of SC Category according to 21% reservation for promotion on the post of Chief Engineer and that both the posts are already filled up. Shri Ram Kewal Prasad was promoted on the post of Chief Engineer on 4.8.2003. At that time the petitioner had completed only 09 years of service and was not eligible for promotion as Chief Engineer. In paragraph 10 it is stated that under U.P. Palika Centralized Services a total of 12 posts of Chief Engineers are created and according to the earlier roster system, 03 posts come under the purview of promotion to the post of Chief Engineer, but in view of order passed by the Lucknow Bench of this Court in Writ Petition No. 1208 (SB) of 2008 on 19.11.2008, the Engineers concerned should not be promoted against more than 21% post under the quota of S.C. Category and accordingly out of 12 posts, only 02 persons can be promoted in the SC category, which are already filled up. Shri Pankaj Saxena submits that in Dharam Pal Singh Chauhan and another vs. State of UP and others in Writ Petition No. 1208 (S/B) of 2008 decided on 19.11.2008 a Division Bench of this Court answered the questions posed by it as follows:- "CONCLUSION 121 Subject to above, we record our finding as under:-- (1) In the event of conflict between the quota of reservation and roster, the former shall prevail over the later, as held by Hon'ble Supreme Court in the case of R.S. Garg (supra). While applying quota for reservation and roster, the State have to confine the outer limit of reservation provided by 1994 Act for SC, ST and OBC category. (2) The extent of reservation provided by sub-section 1 of Section 3 of 1994 Act, is mandatory. In the matter of promotion or recruitment reservation cannot exceed the outer limit of 21%, 2% and 27% for SC, ST and OBC. (3) Under the garb of sub-section (5) while applying roster or sub-section (7) of Section 3 of 1994 Act, the State cannot travel beyond the outer limit of reservation provided by sub-section (1) of Section 3 of 1994 Act. Meaning thereby, even while applying roster for SC, ST or OBC, the outer limit of 21%, 2% or 27% should be adhered to. (4) The outer limit of 50% provided by Article 16 (4B) of the Constitution or by Hon'ble Supreme Court right from M. R. Balaji's case (supra) till date, includes the reservation for all the categories or classes of employees. In case reservation is provided only for one category like in the present case, 21% to SC category, then it does not mean that State has right to enhance reservation upto 50% suo motu exceeding the statutory quota provided by the Act and statute. 50% rider is the outer limit permissible for all categories and in case under the Act or statutes lesser percentage of reservation has been provided to any class, then that will be the outer limit for the respective classes as in the present case, reservation for SC is 21% and it cannot be enhanced to 50%. (5) While exercising power for purpose of reservation keeping in view the law laid down by the Hon'ble Supreme Court in M. Nagraj's case (supra) to find out the backwardness or inadequacy of representation keeping in view the necessity and efficiency provided by Article 335 of the Constitution, the Government cannot travel beyond the outer limit of quota provided under sub-section (1) of Section 3 of 1994 Act for SC, ST and OBC i.e., 21%, 2% and 27% respectively in the matter of promotion. (6) Any reservation made exceeding the outer limit provided under the 1994 Act or the statutes, shall be deemed to be excessive reservation and the reservation so made, may be struck down by the court as it would amount to derogation of constitutional requirement as held in M. Nagraj's case. (supra). In the present case since the sanctioned strength of the post of Engineer-in-Chief is two and the quota of scheduled caste is 21% under sub-section (1) of Section 3 of the 1994 Act, one out of two posts cannot be reserved for scheduled caste. 122. Subject to findings recorded hereinabove, the writ petition deserves to be allowed. Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the order dated 27.8.2008 contained in Annexure No.1 to the writ petition. A writ in the nature of mandamus is issued directing the opposite parties to proceed while filling the post/vacancies in question, in the light of observations made in the present judgment. No orders as to costs." Shri Pankaj Saxena submits that the principle of law relating to reservation as explained in Dharam Singh Chauhan's prohibits the State from treating three posts out of 12 for SC candidates. He would submit that 3 out of 12 would exceed the quota of 21%, clearly impermissible in law vide the judgement in Indira Sawhney vs. Union of India 1995 Supp 3 SCC 332; R.K. Sabharwal vs. State of Punjab (1995) 2 SCC 745 ; Bhup Singh vs. State of Haryana and others (1999) 1 SCC 546 ; R.S. Garg vs. State of UP and others (2006) 6 SCC 430 and M. Nagraj and others vs. Union of India and others 2006 (8) SCC 212 . Shri Saxena submits that principle of rounding of to the nearest of higher value is not applicable to the reservation to exceed the statutory percentage of 21% fixed for SC by Section 3 (1) (a) of the UP Public Services (Reservation for Scheduled Caste, Scheduled Tribes and Other Backward Classes) Act, 1994. In substance the argument of the petitioner is based upon the principle of rounding of, and that the third post was actually held by Ram Kewal Prasad a reserved category candidate junior to the petitioner at serial No. 95 in the final seniority list as against the seniority position of petitioner at serial no. 35. In substance the argument of the petitioner is based upon the principle of rounding of, and that the third post was actually held by Ram Kewal Prasad a reserved category candidate junior to the petitioner at serial No. 95 in the final seniority list as against the seniority position of petitioner at serial no. 35. He was promoted in the year 2003 superseding the petitioner on the ground that the petitioner had not completed 15 year's continuous service. The petitioner claims that he was appointed as Assistant Engineer in the Department through direct recruitment by Commission on 28.5.1994 and that after completing 15 year's of service on the first of July 2010 he is eligible to be promoted as Chief Engineer on the third post. Alternatively the petitioner submits that under the Government Order dated 25.6.2007 1st, 6th, 11th, 16th and 21st vacancies in the notified roster, are to be given to the candidates belonging to SC category, and that if the roster is applied, after 25.6.2002, as a running account, the first and thereafter 6th vacancies have to be given to the SC category irrespective of the percentage fixed in the Reservation Act of 1994. The Reservation Act of 1994 provides for 21% reservation for SC in direct recruitment and also in promotions, after the amendment of the Act w.e.f. 15.9.2001. If we apply the statutory reservation of 21% to the 12 sanctioned posts the reservation for SC category would come to 2.52, which is less than three. The reservation of the third post for SC will increase the reservation to 25%, which is not permissible. In State of UP and another vs. Pawan Kumar Tiwari and others AIR 2005 SC 658 the Supreme Court, considering applicability of percentage and reservation to 93 advertised posts of Civil Judge (Junior Division) for UP Judicial Service to be filled up by direct recruitment by the Public Service Commission, held in paras 8 and 9 as follows:- 8. It was submitted by the learned counsel for the appellants that if this principle of rounding off is to be applied then the percentage of reservation in scheduled tribe category would come to 2 by rounding off 1.86, to the nearest higher value, and in that case a candidate from scheduled tribe category and not the respondent would be entitled to appointment. We cannot agree. We cannot agree. No candidate in scheduled tribe category has chosen to lay challenge to the selection. We are also not aware if there is any scheduled tribe category candidate available and qualified for appointment consequent upon his having participated in the process of selection. This plea of the appellants is without any foundation and hence does not deserve to be taken note of. 9. There is yet another reason why the judgment of the High Court has to be maintained. The total number of vacancies was 93. Consequent upon the allocation of reservation and calculation done by the appellants, the number of reserved seats would be 47, leaving only 46 available for general category candidates. Meaning thereby, the reservation would exceed 50% which would be unconstitutional. The total number of reserved seats could not have been more than 46 out of 93." In M. Nagraj (supra) the Apex Court held that while granting reservation to any section of society, the Government cannot travel beyond 50% of the total strength of the cadre. In para 119 the Apex Court held that if the extent of reservation is excessive, then it makes an inroad into the principle of equality in Article 16 (1). The extent of reservation, depends on the facts of each case. In para 124 (in the conclusion0 the Supreme Court held:- "124. However, in this case, as stated, the main issue concerns the "extent of reservation". In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely." In R.K. Sabharwal's case (supra) the Apex Court held that when the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class, then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. It was observed that numerical quota of posts is not a shifting boundary, but it has been done with due application of mind and roster shall operate till the time the respective appointees or promotees can be on the posts meant for them in the roster. The operation of the roster and the "running account" must come to an end as and when all the seats earmarked for reserved candidates are filled up. The Supreme Court further defined "vacancy" and ruled that reservation should be provided keeping in view the cadre strength of the posts comprising the cadre. In paragraph-6 of the judgment it was held as follows:- "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. 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." From the aforesaid decisions, we find that the Supreme Court has consistently held that the enabling provisions for reservations under Articles 16 (4), 16 (1) or 15 (3), are to be strictly applied. The number of posts reserved for direct recruitment or promotion should not exceed the statutory percentage provided under the Reservation Act of 1994, to any particular class including the Scheduled Caste. The principle of rounding of should not be applied to increase the percentage of reservation beyond the permissible statutory limit, and that if appointments have to be made on roster points, the reservation should be applied in a manner that it should not exceed the limit of 50%. In R.S. Garg (supra) the Supreme Court held that Section 3 of the Reservation Act of 1994, provides for the extent of reservation for Scheduled Caste upto 21%. While providing reservation, the 1st and 6th posts have to be reserved for Scheduled Caste candidates. The reservation has to be confined to 21% and when there are 06 posts, 02 cannot be reserved for Scheduled Caste candidates. In the event of conflict between the reservation and roster the former shall prevail. In paragraphs 34, 38, 39 and 40 in R.S. Garg's case (supra) it was held as follows: "34. In terms of the 1994 Act, the reservation was to be confined to 21%. There were 6 posts. If the roster was to be followed, 2 posts would be reserved for the Scheduled Caste candidates, which is impermissible. 38. An executive action or a legislative Act should also be commensurate with the dicta laid down by this Court in Indra Sawhney v. Union of India [1992 Supp.2 SCR 454] ('Indra Sawhney-I') and followed in Ashoka Kumar Thakur v. State of Bihar and Ors. 38. An executive action or a legislative Act should also be commensurate with the dicta laid down by this Court in Indra Sawhney v. Union of India [1992 Supp.2 SCR 454] ('Indra Sawhney-I') and followed in Ashoka Kumar Thakur v. State of Bihar and Ors. [ (1995) 5 SCC 403 ] and Indra Sawhney v. Union of India [1999 Supp.5 SCR 229] ('Indra Sawhney-II'). 39. In Umadevi (Supra), the Constitution Bench referring to Kesavananda Bharati (supra), Indra Sawhney-I (supra) and Indra Sawhney-II (supra), opined: "These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment." 40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot 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." In the present case one post was occupied by Shri Ram Kewal Prasad placed at serial No. 95 in the seniority list in the reserved category in the year 2003, on his promotion to the post of Chief Engineer (Civil). Shri Ram Kewal Prasad is not a party to the writ petition and thus we are not examining the validity of his promotion. At that time admittedly the petitioner had completed only 09 years of service and was not eligible for promotion. The rule of rounding of will not be applicable by increasing the reservation, to the 12 sanctioned posts of Chief Engineer, from 2 to 3, as that will increase the percentage of reservation to the Scheduled Caste for promotion to 25% and thereby disturbing the reservation in promotions in taking the reservation to the reserved categories including SC/ST, and OBC, beyond 50%, in all. The petitioner may have completed 15 years of continuous service after his selection by Public Service Commission, and appointment in the year of recruitment on first July 2010, but that since at present there is no post available for him, in his reserved category for promotion, as Chief Engineer (Civil), the Departmental Promotion Committee, is not required to consider him for promotion. We do not find any merit in the claim of the petitioner for promotion, at this stage. The writ petition is dismissed.