Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 2764 (ALL)

OM PRAKASH SHARMA v. STATE OF U. P.

2012-12-03

P.K.S.BAGHEL

body2012
JUDGMENT Hon’ble P.K.S. Baghel, J.—The petitioner has preferred this writ petition for issuance of writ of certiorari to quash the order dated 27.5.2008 passed by the respondent No. 3, the District Inspector of Schools, Meerut as well as the resolution dated 15.5.2008 passed by the respondent No. 4, the Authorized Controller/Associate District Inspector of Schools, Jaswant Mills Higher Secondary School Maliyana, district Meerut. 2. A brief reference of the factual aspect would suffice. Jaswant Mills Higher Secondary School, Maliyana, district Meerut is a recognised institution, which has been established and maintained by the Society registered under the provisions of the Societies Registration Act, 1860. The education is imparted upto intermediate level and it receives maintenance grant under the provisions of the U.P.High School and Intermediate Colleges (Payment of Salaries of the Teachers and other Employees) Act, 1971. The Institution, its teachers and employees are governed under the provisions of the Intermediate Education Act, 1921 and the regulations framed thereunder and U.P.Secondary Education Service Selection Board Act, 1982. 3. It is stated that one post of clerk fell substantively vacant as the permanent clerk Nem Singh reached his age of superannuation on 30.6.2007. It appears that the authorized controller is functioning in the institution and a resolution was taken on 5.7.2007 wherein the proposal was sent for the promotion of the petitioner on the post of clerk. Subsequently, another resolution was taken on 15.5.2008 wherein it was resolved that the respondent No. 7 who belongs to Schedule Caste category may be promoted on the same post. A copy of the said resolution is placed by the petitioner on record as Annexure-3 to the writ petition. In pursuance to the said resolution the DIOS vide order dated 27.5.2008 accorded his approval for promotion of the respondent No. 7 on the post of clerk. Aggrieved by the said order the petitioner has preferred this writ petition. Relevant, would it be to mention that the petitioner had earlier preferred a Writ Petition No. 12255 of 2008 before this Court for a direction upon the respondents to promote him on the post of Clerk. This fact is evident from the approval order of the DIOS wherein it is clearly stated that the approval of the respondent No. 7 for promotion on the post of clerk will be subject to the decision of the Writ Petition No. 12255 of 2008. 4. This fact is evident from the approval order of the DIOS wherein it is clearly stated that the approval of the respondent No. 7 for promotion on the post of clerk will be subject to the decision of the Writ Petition No. 12255 of 2008. 4. I have heard learned counsel for the petitioner Sri S.C.Srivastava and learned counsel for the respondent Sri Santosh Kumar Srivastava. Learned counsel for the petitioner submits that earlier resolution dated 5.7.2007 was not cancelled and as such the subsequent resolution dated 15.5.2008 is illegal. He further submits that the respondent No. 7 does not belong to Schedule Caste category and he belongs to ‘Kori’ category i.e. of OBC category. He has drawn the attention of the Court to the service record of the father of the respondent No. 7 who was also the clerk in the same institution. In the service record of the father of respondent No. 7 word ‘Koli’ is mentioned. Learned counsel for the petitioner stated that the ‘Koli’ belongs to OBC. He has also invited the attention of the Court to his earlier certificate wherein his caste is mentioned ‘kori’, however, subsequently he obtained a certificate from the Tehsildar on 8.4.2008 wherein the respondent No. 7 caste has been shown as ‘Julaha Kori’ (S.C.). The submission of learned counsel for the petitioner is that by the Government Order dated 10.7.1986 which provides that caste ‘Kori’ of the region Agra, Meerut and Rohilkhand is included under the category of OBC and they would not be treated as Schedule Caste candidate. On the basis of the said Government Order learned counsel for the petitioner has urged that the respondent No. 7 only in order to get the illegal promotion on the post of clerk has procured subsequent certificate and as such the resolution dated 15.5.2008 for promotion on the post of clerk is illegal. 5. The respondent No. 7 has filed a counter-affidavit. The stand of the respondent No. 7 is that subsequent Government Order dated 26.3.2008 which a clarificatory in nature clarify the earlier Government Order dated 10.7.1986, on which the learned counsel for the petitioner had placed reliance. In the subsequent Government Order it has been made clear that the caste ‘Kori’ is a subcaste of Hindu Julaha and in Meerut, Agra, and Saharanpur region they would be treated as Schedule Caste. In the subsequent Government Order it has been made clear that the caste ‘Kori’ is a subcaste of Hindu Julaha and in Meerut, Agra, and Saharanpur region they would be treated as Schedule Caste. It is further submitted that on basis of the said Government Order the respondent No. 7 has obtained fresh case certificate issued from the office of the Tehsildar wherein the respondent No. 7 caste is clearly mentioned ‘Julaha Kori’, thus he has rightly been treated as a Schedule Caste candidate. 6. Learned Standing Counsel has submitted that the impugned order has been passed by the District Inspector of Schools, in terms of the Government Order and there is no illegality and as such no interference is called for under Article 226 of the Constitution. 7. I have consider the rival submissions of the respective parties and perused the record. Indisputably the petitioner is a senior in the cadre of the Class IV employee. A copy of the seniority list has been placed on record by the respondent No. 2 as Annexure-CA-2 to the counter-affidavit. The name of the petitioner is at serial No. 3 and respondent No. 7 at serial No. 6 and the initial date of appointment of the petitioner and respondent is 1.11.1971 and 1.1.1997 respectively. The District Inspector of Schools, has accorded the approval for the promotion only on the basis that the respondent No. 7 belongs to Schedule Caste category. It is admitted that there are only two sanctioned post of Class III employees. The Supreme Court in the case of R.S.Garg v. State of U.P., (2006) 6 SCC 430 , has held that percentage of reservation of the Schedule Caste cannot exceed beyond 21 % similarly for OBC candidate 27% is the limit, it cannot exceed 27 % and as such for promotion there must be at least 5 posts. 8. In the present case admittedly there are only two posts and the promotion of the respondent No. 7 is illegal on two counts : (i) there are only two posts and as such the promotion cannot be made on the basis of reservation under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act,1994, (ii) reservation in promotion has been done away in view of the judgment of the Supreme Court in U.P.Power Corporation Ltd. v. Rajesh Kumar and others, (2012) 2 UPLBEC 1222. The judgment of the Supreme Court in R.S.Garg (supra) has been followed by this Court in Heera Lal v. State of U.P. and others, (2010) (6) ADJ (1) (FB) and Dr.Vishwajit Singh v. State of U.P., 2009 (4) ADJ 373 (DB) and Rajesh Kumar Misra v. State of U.P. and others, Writ Petition No. 16149 of 2010, wherein the same proposition of law has been laid down. It is stated at the Bar that the petitioner stood retired on 31.1.2012. In view of the aforesaid facts the impugned order dated 27.5.2008 passed by the respondent No. 3 the District Inspector of Schools, Meerut is set aside. The matter is remitted to the District Inspector of Schools, Meerut to pass a fresh order in the light of the observations made herein above. The District Inspector of Schools will issue notice to the eligible candidates for the promotion and he will undertake this exercise as expeditiously as within three months from the date of communication of this order. Writ Petition is allowed. No order as to costs. ——————