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2013 DIGILAW 1085 (ALL)

Netra Pal Singh v. Chandra Pal and Others

2013-04-10

SATYA POOT MEHROTRA, SUNITA AGARWAL

body2013
Satya Poot Mehrotra, and Mrs. Sunita Agarwal, JJ.— The present Special Appeal has been filed against the Judgment dated 30.6.2009 passed by the learned Single Judge whereby Civil Misc. Writ Petition No. 33002 of 2008, filed by the Petitioner-Respondent No. 1 (Chandra Pal), was allowed by the learned Single Judge. 2. From a perusal of the record, it appears that there is an institution known as Janta Inter College, Behat, District Saharanpur (hereinafter referred to as the "Institution in question"). The said institution is duly recognized and is on grant-in-aid list of the State Government. 3. There were three sanctioned posts in clerical cadre in the institution in question out of which one post was the post of Head Clerk while other two posts were the posts of Assistant Clerk. The post of Head Clerk was liable to be filled up by promotion alone. Out of the remaining two posts of Assistant Clerk, one post of Assistant Clerk had already been filled up by direct recruitment, while the remaining post of Assistant Clerk, which was vacant post, fell within 50 per cent quota of promotion from Class-IV employee working in the institution in question. 4. In its meeting held on 28.12.2007, the Committee of Management of the institution in question passed a Resolution that the Petitioner-Respondent No. 1 (Chandra Pal) was suitable for promotion on the aforesaid vacant post of Assistant Clerk as he was eligible, keeping in view his seniority and qualification. It was further, observed in the Resolution that the Respondent No. 5-Appellant (Netra Pal Singh) being junior was not eligible for promotion. Accordingly the Committee of Management resolved to recommend for approval of the District Inspector of Schools, Saharanpur the name of the Petitioner-Respondent No. 1 (Chandra Pal) for promotion to the aforesaid post of Assistant Clerk. The matter remained pending before the District Inspector of Schools, Saharanpur. In the circumstances, the Petitioner-Respondent No. 1 herein filed a Writ Petition before this Court being Civil Misc. Writ Petition No. 8883 of 2008 which was disposed of, by this Court, by the order dated 15.2.2008 directing the District Inspector of Schools, Saharanpur to decide the claim of the Petitioner-Respondent No. 1 herein (Chandra Pal). 5. Pursuant to the said order dated 15.2.2008 passed by this Court, the District Inspector of School, by the order dated 16.6.2008, decided the aforesaid matter pertaining to the Petitioner-Respondent No. 1 (Chandra Pal). 5. Pursuant to the said order dated 15.2.2008 passed by this Court, the District Inspector of School, by the order dated 16.6.2008, decided the aforesaid matter pertaining to the Petitioner-Respondent No. 1 (Chandra Pal). 6. The District Inspector of Schools, Saharanpur concluded that the aforesaid vacant post falling in promotional quota was required to be filled up by the candidate/employee belonging to Scheduled Caste, and therefore the Petitioner-Respondent No. 1 (Chandra Pal) who belonged to Backward Class could not be promoted on the said post. The District Inspector of Schools, therefore declined to grant approval for the promotion of the Petitioner-Respondent No. 1 (Chandra Pal). The District Inspector of Schools, further observed that the Respondent No. 5-Appellant (Netra Pal Singh), who belonged to Scheduled Caste, deserved to be promoted on the aforesaid vacant post falling in promotional quota. 7. The Petitioner-Respondent No. 1 (Chandra Pal) thereupon filed Civil Misc. Writ Petition No 33002 of 2008 before this Court, inter-alia, praying for quashing the said order dated 16.6.2008 passed by the District Inspector of Schools, Saharanpur and for directing the District Inspector of Schools, Saharanpur to approve the Resolution dated 28.12.2007 passed by the Committee of Management of the institution in question regarding promotion of the Petitioner-Respondent No. 1 (Chandra Pal) as Assistant Clerk in the institution in question. 8. The learned Single Judge by the Judgment dated 30.6.2009 allowed the aforesaid Civil Misc. Writ Petition No. 33002 of 2008 and quashed the said order dated 16.6.2008 passed by the District Inspector of Schools, Saharanpur. The learned Single Judge, further directed the District Inspector of Schools, Saharanpur to accord approval in respect of the promotion of the Petitioner-Respondent No. 1 from Class-IV post to Class-III post in the institution in question. The Respondent No. 5-Appellant (Netra Pal Singh) thereafter filed the present Special Appeal. 9. We have heard Sri Krishna Ji Khare, learned Counsel for the Respondent No. 5-Appellant, Sri K. P. Shukla, learned Counsel for the Petitioner-Respondent No. 1 and the learned Standing Counsel appearing for the Respondent Nos. 2, 3 and 4, and perused the record. 10. It is submitted by Krishan Ji Khare, learned Counsel for the Respondent No. 5-Appellant that the learned Single Judge has erred in passing the Judgment dated 30.6.2009 quashing the order dated 16.6.2008 passed by the District Inspector of Schools, Saharanpur. 2, 3 and 4, and perused the record. 10. It is submitted by Krishan Ji Khare, learned Counsel for the Respondent No. 5-Appellant that the learned Single Judge has erred in passing the Judgment dated 30.6.2009 quashing the order dated 16.6.2008 passed by the District Inspector of Schools, Saharanpur. It is submitted that the aforesaid vacant post falling in promotional quota in the institution in question was liable to be filled up by the employee belonging to Scheduled Caste, and the District Inspector of Schools, Saharanpur rightly passed the order dated 16.6.2008. 11. In reply, Sri K.P. Shukla, learned Counsel for the Petitioner-Respondent No. 1 submits that there were only three posts in the cadre of Assistant Clerk in the institution in question, out of which one post was for Head Clerk. It is submitted that as the number of posts in the cadre of Assistant Clerk was only three, there could not be any reservation for Scheduled Castes in respect of the post falling of the promotional quota. In support of his submission, Sri K.P. Shukla has relied upon the Full Bench decision of this Court in Heera Lal v. State of U.P. and Others, (2010) 3 UPLBEC 1761(FB). 12. We have considered the submissions made by the learned Counsel for the parties. 13. In Heera Lal Case (supra), a learned Single Judge of this Court noted that there was conflict between the ratio of the Division Bench decision in Mahendra Kumar Gond v. DIGS, 2009 (6) ADJ 674 and the ratio of the Division Bench decision in Dr. Vishwajeet Singh v. State of U.P., (2009) 2 UPLBEC 1443, and referred the following two questions for decision by a Larger Bench:- "1. Whether the roster in respect of reservation can be applied with regard to the promotion in respect of class Class III posts in Intermediate College, where the number of posts is less than five? 2. Whether there is a conflict between the ratio of the two Division Bench judgments of Mahendra Kumar Gond (supra) and Dr. Vishwajeet Suingh (supra) as referred to herein above, and if so, then which of the decisions lay down the law correctly?" 14. The Full Bench answered the said questions as under: "1. 2. Whether there is a conflict between the ratio of the two Division Bench judgments of Mahendra Kumar Gond (supra) and Dr. Vishwajeet Suingh (supra) as referred to herein above, and if so, then which of the decisions lay down the law correctly?" 14. The Full Bench answered the said questions as under: "1. Question No. 1 is answered in the negative holding that either in cases of promotion or direct recruitment, the rule of reservation providing for 21 per cent reservation to scheduled castes under U.P. Act No. 4 of 1994 as applicable to aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five. 2. The decision in the case of Mahendra Kumar Gond v. State of U.P. reported in 2009 (6) ADJ 674 having been rendered without taking notice of the two Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi (supra) is not approved. The Judgments of Dr. Vishwajeet Singh is hereby approved as laying down the law correctly on the issue raised herein." 15. The Full Bench decision of this Court lays down that either in cases of promotion or direct recruitment, the rule of reservation providing for 21 per cent reservation to Scheduled Castes under the U.P. Act No. 4, of 1994 as applicable to the aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five. 16. In the present case, as noted above, there are only three posts in the cadre of Assistant Clerk. Therefore, in view of the above Full Bench decision, there could not be any reservation for Scheduled Castes in respect of the vacant post falling in promotional quota in the institution in question. The order dated 16.6.2008 passed by the District Inspector of Schools, Saharanpur was therefore, not in accordance with law. The learned Single Judge has rightly quashed the said order dated 16.6.2008. 17. The Special Appeal filed by the Respondent No. 5-Appellant lacks merit and the same is liable to be dismissed. The Special Appeal is accordingly dismissed. 18. However, on the facts and in the circumstances of the case, there will be no order as to costs. Special Appeal dismissed. _____________