Arun Tandon, J.@mdashPetitioner before this Court seeks quashing of the order of the Regional Level Committee dated 30.6.2006 whereby his representation for promotion against the post of Lecturer (Economics) in the institution has been rejected.
2. Facts in short giving rise to the present writ petition are as follows:
Janta Inter College, Sohsa Mathiya, District Kushi Nagar, is an aided and recognized Intermediate college. Provisions of Intermediate Education Act and the regulations framed thereunder as also those of U.P. Secondary Education Services Selection Board Act, 1982 are fully applicable to the teachers of the said institution. The Petitioner was appointed as L.T. Grade teacher in the said institution on the recommendation of the Selection Board on 16.4.1998. It is stated that the Petitioner has been continuously working as such since then. Post of Lecturer (Economics) is stated to have fallen vacant on 30.6.2006. According to the Petitioner the vacancy fell within the quota reserved for promotion and he being the senior most eligible teacher in L.T. Grade, was entitled to be promoted against the said vacancy.
3. The Selection Board, however, on a requisition made in the year 2002 in respect of the anticipated vacancy of Lecturer (Economics) proceeded to offer appointment by direct recruitment to Respondent No. 5. This according to the Petitioner was illegal. He, therefore, approached this Court by means of writ petition No. 3687 of 2006 which was disposed of by means of the judgment and order dated 13.7.2006 permitting the Petitioner to represent his grievance before the Regional Level Committee. The Regional Level Committee has rejected the claim of the Petitioner under the impugned order after recording following facts:
(a) There are thirteen sanctioned post of Lecturers in the institution.
(b) Five posts have been filled by way of direct recruitment and four by way of promotion from persons belonging to General Category only. Therefore, the reservation applicable in favour of Scheduled Caste category remains unfilled. The vacancy of Lecturer (Economics) was within the quota for Scheduled Caste. Since there was no candidate within the said reserved category for promotion, the vacancy was rightly requisitioned for direct recruitment and filled by a candidate belonging to Scheduled Caste. The order impugned records that the Petitioner being a member of General Category could not have been promoted against the reserved post.
4. Challenging the order so passed, counsel for the Petitioner contends that 50% of the total sanctioned post are required to be filled by way of promotion which in the facts of the case works out to seven. It is stated that in terms of the Government Order dated 12.7.2008 read with Section 3(7) of the U.P. Public Services (Reservation for Scheduled Caste/Scheduled Tribe and Other Backward Classes) Act, 1994 if a candidate within reserved category is not available, the vacancy has to be filled by way of promotion from a person belonging to General Category. The Regional Level Committee has failed to take note of the aforesaid statutory provisions. The Petitioner was the only candidate eligible for promotion against the said post. It is, therefore, submitted that the impugned order is liable to be set-aside.
5. On behalf of Respondent No. 5 it is contended that the vacancy was due to be caused in the year 2004 because of the retirement of the incumbent concerned. The Committee of Management requisitioned the said anticipated vacancy in 2002 to the Selection Board. On the date of requisition as well as on the date vacancy was to be caused, the Petitioner was not possessed of a Degree of M.A., therefore, the question of consideration of his claim for promotion did not arise. It is then clarified that by means of amendment in the regulations/ Government order, the age of retirement was enhanced by two years, therefore, the incumbent who was to retire in 2004 actually continued in service up to the year 2006. Counsel for the Respondent submits that the Petitioner is not a member of Scheduled Caste and, therefore, not eligible for such promotion. He further submits that the M.A. Degree obtained by the Petitioner through correspondence from U.P. Rajshri Open University has been so obtained without prior permission of the Committee of Management and, therefore, has to be ignored. Lastly it is contended that quota for Scheduled Caste was vacant which has been filled by appointment of Respondent No. 5 who is a member of Reserved Category, this Court may not interfere with the impugned order.
6. I have heard learned Counsel for the parties and have gone through the records of the present writ petition.
7. From the facts stated above, it is clear that the vacancy on the post of Lecturer (Economics) was caused only on 30.6.2006. The requisition sent earlier by the Committee of Management in respect of the anticipated vacancy will not in any way have the effect of creating a situation where the vacancy can be said to have been caused in the year 2004. The age of retirement had been enhanced by the Government and, therefore, it is only on the date of actual retirement as per enhanced age that the vacancy can be said to have been caused. On the first day of the year of recruitment with reference to the date of occurrence of vacancy in the year 2006, this Court finds that the Petitioner had passed M.A. (Economics) Examination from U.P. Rajshri Open University to be precise in the year 2004. A copy of the mark-sheet issued in favour of the Petitioner has been brought on record by means of supplementary affidavit. This Court, therefore, hold that on the first day of year of recruitment, the Petitioner was qualified for being promoted on the post of Lecturer (Economics) in the institution.
8. The issue which now requires consideration is as to whether the vacancy within promotion quota which was reserved for Scheduled Caste category could be filled by a candidate belonging to General Category or not.
9. For the aforesaid purpose, it would be worthwhile to refer to Section 3(7) of the Act, 1994 which reads as follows:
If, on the date of commencement of this Act, reservation was in force under Government orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked.
10. The Government Order which regulates reservation in the matter of promotion in aided and recognized Intermediate Colleges is dated 12.7.1978 and Clauses 3, 4 and 5 of the said Government Order relevant for our purposes which reads as follows:
11. From Section 3(7) of Act, 1994 it is apparently clear that the Government Order dated 12.7.1978 still holds the field. No other Government Order modifying the same has been brought to the knowledge of the Court.
12. On a reading of the Government Order, it is apparently clear that against a post for promotion with Reserved Category of Scheduled Caste, if a candidate of the same category within the eligibility zone is not available for promotion then the vacancy has to be offered to a candidate belonging to the other reserved category and if in the said category also, no eligible candidate is available for promotion, then the vacancy is to be filled from the candidate possessed of qualifications within the General Category.
13. In view of the aforesaid what did need examination from the Regional Level Committee was as to whether on the relevant date with reference to the date of occurrence of vacancy on the post of Lecturer (Economics), whether any candidate belonging to other reserved category qua which reservation was provided was eligible for promotion or not. If no candidate within the Scheduled Caste Category or any other reserved category was eligible for promotion for the post, the claim of the Petitioner who is a member of General Category had to be considered for promotion in view of Clause 5 of the Government Order, The aforesaid aspect of the matter has completely been ignored by the Regional Level Committee. Consequently, the order of the Regional Level Committee is hereby quashed.
14. Let the Regional Level Committee pass a fresh order with four weeks from the date a certified copy of this order is filed before it after affording opportunity of hearing to the Petitioner, Respondent No. 5 and the Committee of Management, keeping in mind the observations made herein above.
15. It is also left open for the Petitioner to question the appointment of Respondent No. 5 on the ground that the advertisement had not been made in accordance with law. In case the Regional Level Committee finds that the Petitioner is entitled for promotion against vacancy of Lecturer (Economics), it shall pass appropriate order for the purposes and in that contingency the U.P. Secondary Education Services Selection Board will consider the claim of Respondent No. 5 for placement in some other institution which was subject matter of the same Advertisement and where the vacancy still exists, having due regard to the merit secured by the Respondent No. 5 in the selection.
16. Writ petition is allowed.
