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2014 DIGILAW 2798 (ALL)

SURENDRA SINGH YADAV v. STATE OF U. P.

2014-09-10

MAHESH CHANDRA TRIPATHI

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JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard learned counsel for the petitioner, Sri Pankaj Rai, learned Additional Chief Standing Counsel for the respondent No. 1 and 2 and Sri Kamlesh Shukla, for respondent No. 5. By means of the present writ petition, the petitioner has prayed for following reliefs : “(i) Issue a suitable writ, order or direction in the nature of certiorari quashing the order dated 17.5.2007 passed by the District Inspector of Schools Kanpur Dehat (A-2) to the writ petition. (ii) Issue a writ, order or direction in the nature of mandamus commanding the respondent not to give effect to the impugned order referred to above. (iii) Issue a writ, order or direction in the nature of mandamus commanding the respondent to permit the petitioner to function as assistant clerk in Sri Ram Ratan Inter College, Kanchausi Bajar District Kanpour Dehat and pay his salary regularly month to the month if and when same fell due. (iv) Issue any other writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (v) Award the cost of the writ petition.” 2. Brief facts giving rise to the present writ petition are as follows : The present matter relates to the Sri Ram Ratan Inter College, Kanchausi Bazar (herein after referred as ‘College’) which is recognized under the Intermediate Education Act, 1921 and covered under the provisions of Payment of Salary Act. The teaching and non teaching staff of the college are being paid from the State Government. The petitioner who belongs to OBC category was appointed as Class-IV in the college on 1.12.1982. There were total 4 posts of Clerk including the Head Clerk in the college. 3. It transpires from the record that one post of promotion quota was filled up by promoting one, namely, Sri Brajendra Singh Yadav and another post of assistant clerk fell vacant due to promotion of Sri Ram Swaroop assistant clerk to the post of Head Clerk. The Committee of Management vide its resolution dated 2.8.2005 had promoted the petitioner on the post of assistant clerk. The same was also approved by the DIOS, Kanpur Dehat vide order dated 2.2.2007. 4. In the present matter, objection was made by respondent No. 5 who was also class-IV employee and had been placed at serial No. 8 in the seniority listýÿ and belonged to scheduled caste category. The same was also approved by the DIOS, Kanpur Dehat vide order dated 2.2.2007. 4. In the present matter, objection was made by respondent No. 5 who was also class-IV employee and had been placed at serial No. 8 in the seniority listýÿ and belonged to scheduled caste category. He claimed that the vacancy which occurred due to promotion of Sri Ram Swaroop Yadav was to be filled up by the scheduled caste candidate as per roster. Thereafter, he made objection before the Joint Director of Secondary Education, Kanpur Region, Kanpur on the ground that he is a scheduled caste candidate and the said vacancy had to be filled up by the college under the roster by scheduled caste, and in arbitrary manner, resolution had been passed by the committee in favour of the petitioner and he admittedly belonged to OBC category and the said promotion was in violation to roster and as such unsustainable. 5. In pursuance to the objection raised by the respondent No. 5, the District Inspector of Schools had eventually passed the impugned order dated 17.5.2007 cancelling the promotion of the petitioner on the ground that the promotion of the petitioner under 50% quota is in violation of the Government Order dated 17.4.2003 and as such the promotional post had to be given to the scheduled caste candidate as per the roster. 6. I have heard rival submissions of learned counsel for the parties and perused the record. As per the Article 16 (4-A) Constitution of India, which empowers the State for making provisions for reservation in the matters of promotion to the scheduled caste/scheduled tribes, in exercise of the said power, the State of U.P. had made provisions for reservation in the promotion in favour of the scheduled caste upto 21% of the vacancy and consequently roster of promotion was issued by the State Government vide order dated 15.6.2002. As per provisions of Regulation 2 of Chapter-III of the U.P. Intermediate Education Act, 1921, which provides 50% of the post of clerk (class-III) may be filled up by promotion from class-IV employee as such in the present matter two posts of clerk fell vacant, which had to be filled up through promotion from class-IV employees of the college. 7. As per provisions of Regulation 2 of Chapter-III of the U.P. Intermediate Education Act, 1921, which provides 50% of the post of clerk (class-III) may be filled up by promotion from class-IV employee as such in the present matter two posts of clerk fell vacant, which had to be filled up through promotion from class-IV employees of the college. 7. By means of the impugned order dated 17.5.2007, the claim of the petitioner had been rejected on the ground that the college had violated the Government Order dated 17.4.2003 inasmuch as under 50% quota for promotion of scheduled caste had been ignored and the same had been made in violation of roster and further the said promotional post could not be filled up by the OBC candidate. Objection has been raised by the respondents on the ground that resolution passed by the committee of management was contrary to the Government Order and as per roster the said post had to be filled up by scheduled caste candidate. Therefore, it is not disputed that said vacant post had to be filled up only through promotion. In the present matter, admittedly the petitioner is intermediate and in the seniority list of the college, he had been placed at serial No. 4 whereas respondent No. 5 had been placed at serial No. 8, the same is not disputed by either of the parties. 8. In the present matter, it is to be seen under what circumstances, the reservation can be applied where the post are less than 5. Admittedly, in the present college there were only four post of class-III. The identical controversy has come up before this Court and the Full Bench has considered the matter in detail in Heera Lal v. State of U.P. and others, 2010 (6) ADJ 1 (FB). While considering the reservation and applicability of roster in promotion and direct recruitment of class-III post, it has been categorically held that applicability of such reservation can only be provided where there is atleast 5 posts as in the instant case, there are only 4 posts. For deciding the present controversy, it is necessary to reproduce the relevant Paragraph Nos. 22, 25 to 34, which are as follows : “22. For deciding the present controversy, it is necessary to reproduce the relevant Paragraph Nos. 22, 25 to 34, which are as follows : “22. Having carefully examined the said Government Order dated 8th March, 1973 we do not find any such provision for applying the rule of reservation for schedule caste in cases where the total cadre strength is less than five. The Government Order does not enunciate any such principle which can be treated to be in addition to the prescription of the outer limit of percentage of reservation for scheduled castes as provided for in the 1994 Act. The said Government Order only explains the status of the vacancies if the number of vacancies is only two. 25. The decision in R.K. Sabharwal’s case is a five judges pronouncement which still holds the field. The question of giving the benefit of reservation in excess of the percentage of quota of reservation has been put to rest by the decision in the case of R.S. Garg v. State of U.P., (2006) 6 SCC 430 . Paragraph 40 which is quoted herein below: “We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Scheduled Tribe (sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. If 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”. 26. The decision of the Full Bench of the Bombay High Court in the case of New English High School Association, Nagpur and another v. Baldev and another, 2008(5) ESC 3110, need not be gone into as in view of the decisions of the Apex Court referred to herein above, the rule of reservation, in our opinion, cannot be pressed into service on the facts of the present reference. 27. However, even assuming that one such post can exist by applying the rule of necessity and the principle of rounding off, the rule of reservation of 21% in less than five posts cannot be implemented. Law is also acknowledged as a technical dress. 27. However, even assuming that one such post can exist by applying the rule of necessity and the principle of rounding off, the rule of reservation of 21% in less than five posts cannot be implemented. Law is also acknowledged as a technical dress. The prescription of law therefore cannot be designed through an interpretive tool to make it look upside down. Neither the Government Order dated 8th March, 1973 or the subsequent orders nor the provisions of U.P. Act No. 4 of 1994 project and support any such proposition as advanced on behalf of the State. The mathematical calculation prohibits anything further, and so do the legal principles as noticed above. The game of digits and numbers cannot be taken further even by employing the intuitive mind of the great mathematician Ramanujam nor can such a view be made possible through the best of forensic legacy of law. 28. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given then the same would amount to a non-constructive existence of a miscalculated proof in the words of the famous German Mathematician Leopold Kronecker (1823-91). In legal terms this would violate the mandate of the constitution and in cases of promotion it would not be in conformity with the same. 29. It is to be remembered that Article 16(4-A) is an enabling provision and in view of the said interpretation the same cannot be construed to confer an absolute right of reservation even beyond the limits prescribed under the law framed by the legislature, namely U.P. Act No. 4 of 1994. 29. It is to be remembered that Article 16(4-A) is an enabling provision and in view of the said interpretation the same cannot be construed to confer an absolute right of reservation even beyond the limits prescribed under the law framed by the legislature, namely U.P. Act No. 4 of 1994. We may clarify that the roster loses its capability of application where the rule of reservation itself cannot be pressed into service keeping in view the numerical strength of the cadre in such matters as in the present case which is less than five. To do so would be a miscalculation in raw mathematics and the fine tenets of law. The argument of the State if accepted would result in unconstitutionality and an illogical acceptance of the rule of reservation. This would also satisfy the test of reasonableness as arithmetical calculations are also one of the logical foundations for reason. The calculation cannot be violated as explained above and if that is done then it would be unreasonable as well as unconstitutional. 30. The statutory position as contained in U.P. Act No. 4 of 1994 completely takes care of the situation and the impact of the maximum reservation percentage provided for therein cannot be nullified through an interpretation which is neither supported by any Government Order, Rule or judicial pronouncement. The case of Mahendra Kumar Gond (supra) did not decide the question which has been raised in relation to the calculation of the minimum number of posts to be available for applying the rule of reservation. 31. In view of the aforesaid conclusions, we find ourselves in full agreement with the view taken in Dr. Vishwajeet Singh’s case and we hold that the decision in the case of Mahendra Kumar Gond (supra) is per incuriam and even otherwise does not apply the law correctly. We further reject the contention of the State in relation to the issue involved and the submissions raised for the applicability of the Government Order dated 8th March, 1973. 32. There may be cases where there is a rule making provision for different sources of recruitment within the same cadre, then reservation has to be applied to the posts available for being filled up in accordance with the source of recruitment. 32. There may be cases where there is a rule making provision for different sources of recruitment within the same cadre, then reservation has to be applied to the posts available for being filled up in accordance with the source of recruitment. This issue may arise in the context where a candidate is not available for filling up the post by way of promotion and the same has to be diverted to be filled up by direct recruitment. Such a situation will arrive in cases where the number of posts may be five or more so as to make the rule of reservation applicable. Taking for instance were there are say 8 posts in a cadre and the rule is, as presently involved, namely that 50% posts have to be filled up by way of promotion, in that event four posts have to be filled up by promotion and four by direct recruitment. The rule of reservation for appointment by way of promotion is available only to scheduled castes in the State of U.P. and no such rule is available for other backward categories. They are entitled to the benefit of reservation only in the process of direct recruitment. In the example given above where four posts out of eight are to be filled up by direct recruitment one post will have to be given to the other backward category keeping in view the 27% mandate of reservation in favour of such category under the 1994 Act. Against four posts of promotion quota, reservation to a scheduled caste category cannot be granted as there as to be a minimum of five posts for applying the 21% reservation for promotion. In a given situation where no other candidate of any category is available for promotion against the four posts, then such a vacancy to be filled up by promotion may have to be carried over for direct recruitment. This would bring about a change of strength in the source of recruitment thus fluctuating the strength of the post available by direct recruitment. A scheduled caste candidate would therefore, get the benefit of reservation if the cadre strength is increased to five for direct recruitment, even though the same candidate would not get the benefit of reservation if the promotion quota of 50% is adhered to. A scheduled caste candidate would therefore, get the benefit of reservation if the cadre strength is increased to five for direct recruitment, even though the same candidate would not get the benefit of reservation if the promotion quota of 50% is adhered to. It would be appropriate to point out that taking a case where there are five posts for being filled up by promotion and five by direct recruitment in the cadre then in such an event the rule of reservation to the extent of 21% in both the sources can be conveniently made applicable without disturbing the ratio in either of the sources. 33. In such a situation wherever the issue of reservation arises one will have to keep in mind the strength of the cadre as also the source of recruitment which is governed by a statutory rule. The rule providing for the source of recruitment therefore will have to be balanced in such situations. The fluctuating strength of a cadre will therefore have to be kept in mind for applying the rule of reservation. 34. In view of the reasons in support of the conclusions drawn herein above our answer to the questions posed are as follows : 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% 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., 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.” In view of above, it is apparent that rule of roster and concept of running account of the roster, therefore, would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. Vishwajeet Singh is hereby approved as laying down the law correctly on the issue raised herein.” In view of above, it is apparent that rule of roster and concept of running account of the roster, therefore, would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore, not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. 9. It is further relevant to indicate that in such a situation where the issue of reservation arises one will have to keep in mind the strength of the cadre as also the source of recruitment which is governed by a statutory rule. 10. In the present case, admittedly, post against which petitioner had been recommended for promotion under 50% quota from class-IV to class-III, for which the petitioner was fully eligible and admittedly, the petitioner was placed higher than the respondent No. 5 in the seniority list. In light of law laid down in the case of Heera Lal’s case (supra), the order impugned dated 17.5.2007 is unsustainable and is accordingly set aside and quashed. In view of above, the writ petition is allowed. —————