Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2173 (ALL)

SATYA PAL SINGH v. STATE OF U. P.

2010-07-23

A.P.SAHI

body2010
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Dr. H.N. Tripathi learned counsel for the petitioner and Sri. R.K. Ojha for the respondent No. 5 and learned Standing Counsel has been heard for the respondent Nos. 1 to 3. 2. In view of the fact that the Committee of Management has not chosen to contest this petition, it is no longer to await any service of further notice on the respondents. The respondent No. 6 Mahendra Kumar Gupta is a formal party inasmuch as the contest is between the petitioner and the respondent No. 5. 3. Accordingly with the consent of the parties the matter is being disposed of finally at this stage under the rules of the Court. 4. The petitioner has come up praying for a writ of certiorari for quashing of the order dated 12th August, 2008 whereby the claim of the petitioner has been rejected by the Joint Director of Education and the respondent No. 5 Sri Ram Singh has been found to be validly promoted on the post of lecturer in Economics in the Institution. 5. The challenge is on the ground that firstly the petitioner who was entitled to be promoted against the vacancy of lecturer in Sanskrit has been by passed inspite of the fact that he is senior to respondent No. 5 and inspite of the fact that the post of lecturer in Sanskrit fell vacant much before the post of lecturer in Economics. Secondly the respondent No. 5 has been extended the benefit of reservation which could not have been done in view of the law laid down by the Full Bench of this Court in the case of Heera Lal v. State of U.P. and others, 2010 (6) ADJ 1 . 6. Sri Tripathi learned counsel for the petitioner submits that the impugned order having proceeded on erroneous assumptions of fact and law deserves to be set aside and therefore keeping in view the vacancies as explained and admitted in the counter-affidavit of the District Inspector of Schools, the post in Sanskrit against which the petitioner has staked his claim deserves to be given to the petitioner and his promotion as lecturer in Sanskrit should be approved. 7. 7. Sri R.K. Ojha learned counsel for the respondent No. 5 contends that the promotion of the answering respondent was made against the post of lecturer in Economics with which the petitioner has no concern and therefore in the absence of any conflict of interest between the claim of the petitioner and the respondent No. 5 the impugned order can be suitably modified for accommodating the claim of the answering respondent as well. He submits that the law which has been declared by the Full Bench was being awaited as such matters had cropped up before this Court and since the law was unclear therefore it cannot be said that the Joint Director of Education had committed any illegality in accepting the claim of the respondent. 8. Learned Standing Counsel on the other hand has invited the attention of the Court to the facts stated in paragraphs 3 to 5 of the counter-affidavit to contend that in the circumstances as enumerated therein and keeping in view the vacancies which had fallen vacant the claim of the respondent No. 5 had been justifiably upheld by the Joint Director of Education. 9. Having considered the aforesaid submissions the first issue which requires to answered is as to whether the law of reservation as engrained under U.P. Act No. 4 of 1994 can be applied in extending the benefit of 21% reservation in favour of the scheduled castes. The respondent No. 5 claiming such a reservation has been extended the said benefit under the impugned order. 10. A perusal of the ratio of the Full Bench judgment referred to herein above leaves no room for doubt that unless there are a total number of five posts in the source of recruitment available the ratio of reservation will not be applicable. This has been clearly explained that the 21% can be applied only if there are five or more vacancies available. In the instant case there are only four posts available for promotion out of the seven posts sanctioned for lecturers. The rule requires that 50% posts have to be filled up by promotion. In view of this separate source of recruitment provided for in the statutory rules itself, the criteria of 21% will have to be applied to the source of recruitment as indicated in the Full Bench Judgment. The rule requires that 50% posts have to be filled up by promotion. In view of this separate source of recruitment provided for in the statutory rules itself, the criteria of 21% will have to be applied to the source of recruitment as indicated in the Full Bench Judgment. Applying the aforesaid principle the rule of reservation cannot be pressed into service and therefore the impugned order so far as it extends the benefit to the respondent on the strength of reservation cannot be sustained. 11. The next question is that the date of occurrence of vacancy in the present case of the post of lecturer in Sanskrit was 30th June, 2006. There is no dispute that the petitioner was fully eligible for being promoted on the post. The petitioner’s claim was bypassed and after the vacancy of lecturer in Economics came into existence after one year then the claim of respondent No. 5 has been accepted. This in my opinion is unacceptable. The vacancy of lecturer in Sanskrit was in existence on 30th June, 2006 and the petitioner being the only candidate available for promoted in that year of recruitment was entitled for being promoted first, prior to any other claim including the claim of the respondent No. 5. This was also necessary inasmuch as there was no post of lecturer in Economics vacant on the said date for consideration of the candidature of the respondent No. 5. The post of lecturer in Economics fell vacant on 30.6.2007. 12. The third impediment is that according to the rules the Senior Most Teacher in the grade in which the appointment has to be made has to be considered for the purpose of promotion. In the instant case according to the counter-affidavit of the District Inspector of Schools, two posts were available for being filled up by way of promotion under the 50% quota. In such a situation the petitioner being senior to the respondent No. 5 had a claim of priority for consideration keeping in view the fact that the post of lecturer in Sanskrit fell vacant earlier. 13. It is therefore clear that on all three counts, it was the case of the petitioner which had to be accepted and not of the respondent No. 5. Accordingly the impugned order dated 18.8.2008 is unsustainable in law and it is hereby quashed. 13. It is therefore clear that on all three counts, it was the case of the petitioner which had to be accepted and not of the respondent No. 5. Accordingly the impugned order dated 18.8.2008 is unsustainable in law and it is hereby quashed. A direction is issued to the Joint Director of Education to forthwith consider the claim of the petitioner in the light of the observations made herein above and pass an appropriate order giving necessary directions to the Committee of Management as well as to the District Inspector of Schools for the promotion of the petitioner on the post of lecturer in Sanskrit. 14. So far as the claim of the respondent No. 5 is concerned the same will have to be considered only if the post of lecturer in Economics is available for being filled up by way of promotion which can be done independently without affecting the seniority and other rights of the petitioner or any other candidate eligible, qualified and suitable for the post of lecturer in Economics. 15. The writ petition is accordingly allowed. ————