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2010 DIGILAW 338 (ALL)

Usha Agrawal v. State of U. P.

2010-01-27

SHISHIR KUMAR

body2010
JUDGMENT : SHISHIR KUMAR, J. 1. Heard Shri V.K. Singh, learned Counsel for the petitioner and learned Standing Counsel as well as Shri A.K. Gupta, Advocate appearing for the Committee of Management. 2. This writ petition has been filed for a writ of mandamus commanding the respondents to promote the petitioner on the post of Lecturer in Sanskrit in the institution. It appears that petitioner was appointed as Assistant Teacher in L.T. Grade in the year 1982 and in the year 1998, post of Lecturer in Sanskrit fell vacant due to the retirement of the permanent incumbent Smt. Sushila Devi Shashtri. Petitioner being Master of Arts in Sanskrit and B.Ed was fully qualified to be promoted on the post of Lecturer in Sanskrit on the said post. In the institution six posts of Lecturer have been sanctioned and out of six, three posts have already been filled up by way of direct recruitment, therefore, this vacancy was to be filled up under the 50% quota amongst the eligible candidate who were working in L.T. Grade. In spite of the requests made by the petitioner the claim of the petitioner for promotion was not forwarded then he submitted an application to the District Inspector of Schools as well as the relevant authorities for consideration of the claim of the petitioner for promotion. In the meantime, the respondent No. 5 has been adjusted in the institution on the promoted post for which the petitioner was entitled by the Commission. 3. Petitioner submits that it is not permissible in law being a fact that unless and until a requisition to the Commission is sent by the institution for the purposes of making an appointment in a particular institution posts cannot be filled up by an adjustment. Reliance has been placed upon the Division Bench judgment of this Court reported in 2006 (4) ESC 2786 (Satish Kumar v. State of U.P. and Ors.). Para 39 of the said judgment is being quoted below. For the reasons and the conclusions drawn hereinabove, our answer to Question No. 1 is: An unadvertised vacancy cannot be filled up from amongst the candidate who has been selected in any previous selections and to that extent we declare that the pronouncement of the learned Single Judge in the case of Savita Gupta v. State of U.P. and Ors. For the reasons and the conclusions drawn hereinabove, our answer to Question No. 1 is: An unadvertised vacancy cannot be filled up from amongst the candidate who has been selected in any previous selections and to that extent we declare that the pronouncement of the learned Single Judge in the case of Savita Gupta v. State of U.P. and Ors. 2004 (2) UPLBEC 2739, does not lay down the law correctly and is hereby overruled. And to Question No. 2 is: The U.P. Secondary Education Services Selection Board constituted under the U.P. Act No. 5 of 1982 cannot, with the aid of the Government Order dated 12th March, 2001, order any adjustment in respect of a vacancy, which has been intimated and notified but not advertised. 4. In such circumstances, learned Counsel for the petitioner submits that the claim of the petitioner has to be considered and the respondent No. 5 cannot be permitted to join in the institution. 5. On the other hand, learned Standing Counsel submits that it was a reserved category posts therefore, the petitioner cannot be promoted on the post of Lecturer and therefore, the Commission has directed the respondent No. 5 to join in the said institution. 6. I have considered the submission made on behalf of learned Counsel for the parties. 7. It is clear from the record that the claim of petitioner has not been considered, further in view of Division Bench judgment of this Court unless and until a vacancy is notified by the institution to the Commission, the appointment cannot be made for the said institution. Admittedly, institution has not notified, the vacancy of Lecturer to the Commission therefore, the respondent No. 5 cannot be permitted legally to join the institution as Lecturer in the said institution. Further, as regards, the arguments raised by learned Standing Counsel regarding the reservation this Court in a Division Bench judgment reported in 2009 (2) ESC 1011 (Smt. Phoolpati Devi v. Smt. Asha Jaiswal and Ors. has held in para 7 that as the reservation of the Scheduled Caste is only 21%. If it is treated one of the vacancy in either of posts of recruitment in the institution as reserved for Scheduled Caste it would be more than 21%. has held in para 7 that as the reservation of the Scheduled Caste is only 21%. If it is treated one of the vacancy in either of posts of recruitment in the institution as reserved for Scheduled Caste it would be more than 21%. Para 7 of the said judgment is quoted below: 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 the best four posts would have been available 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 as reserved for scheduled caste, it would be more than 21%. The Apex Court in R.S. Garg Vs. State of U.P. and Others, has held as under. 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 roaster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roaster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements. 8. In such circumstances, the contention of the learned Standing counsel cannot be accepted. 9. Apart from the fact that the claim of the petitioner has not been considered by the Regional Level Committee therefore, in my opinion it would be appropriate that a direction to this effect be issued to Regional Level Committee to consider the claim of the petitioner strictly in accordance with law taking into consideration the Division Bench judgment of this Court mentioned above on the basis of relevant records. Further direction is that appropriate orders be passed considering the claim of the petitioner by a speaking and reasoned order within a period of two months from the date of production of certified copy of this order. 10. The writ petition is disposed of accordingly. 11. No order as to costs.