Hon''ble P.K.S. Baghel, J.@mdashThe petitioner is an Assistant Teacher in an Intermediate College. He has made this writ petition for quashing of the order dated 28.7.2009 passed by the Joint Director of Education, the respondent No. 3, whereby, he has rejected the proposal for promotion of the petitioner in the lecturer grade on the ground that the said post shall be filled by a scheduled caste candidate as per roaster. Shorn of unnecessary details the material facts in brief are that Narhari Baba Inter College is a recognized institution by the Board of High School and Intermediate (for short ''College''). The education is imparted up to the level of Intermediate classes. The State Government provides the financial aids to the college. The respondent No. 5 is a duly recognized Committee of Management which is entrusted to look after the affairs of the college.
2. The college, teachers and employees are governed and regulated by different Acts like, Intermediate Education Act, 1921, (for short ''Act 1921'') and the regulations framed thereunder, U.P. High School and Intermediate Colleges (Payment and Salaries of the Teachers and other employees) Act, 1971 (for short ''Salary Act'' 1971) and U.P. Secondary Education Service Selection Board Act, 1982 (for short ''Selection Board Act'').
3. The U.P. Secondary Education Service Selection Board issued an advertisement inviting the applications for selection of the Assistant Teachers (L.T. Grade). In pursuance thereof, the petitioner made his application. He was found suitable and the Selection Board, in terms of the Rule -12 of the U.P. Secondary Education Services Selection Board Rule, 1998, sent the intimation to the District Inspector of Schools. The Rule 13 of the said Rule enjoins that the Deputy Inspector of Schools shall, within 10 days of receipt of the panal, intimate the name of the selected candidate to the Management of the institution which has notified the vacancy. The District Inspector of Schools on 27.11.198 issued a communication to the Manager Narhari Baba Inter College, Karan Chhapra, Ballia for the appointment of the petitioner under the general category. A copy of communication dated 27.11.1998 has been filed as annexure-1 to the writ petition.
4. The Committee of Management appointed the petitioner by way of an appointment letter dated 4.2.1998. In pursuance thereof, the petitioner joined the said institution. The petitioner was working in the said institution as an Assistant Teacher to the entire satisfaction of the Committee of Management. The Management on 17.6.2007 passed a resolution proposing the name of the petitioner to promote him on the post of lecturer (Civics). Relevant would it be to mention that vacancy on the post of lecturer (Civics) occurred on account of the retirement of one Pashupati Prasad who reached his age of superannuation on 13.6.2007. The document with regard to the said proposal was sent by the Management to District Inspector of Schools, the respondent No. 4 on 18.6.2007.
5. The District Inspector of Schools on receiving of the papers for the promotion of the petitioner forwarded it to the Joint Director of Education, Azamgarh, Region, Azamgarh for his approval, on 26.6.2009.
6. On 24.7.2009, the Joint Director of Education returned the papers back to the District Inspector of Schools without approval on the ground that as per roster the said post falls under the promotional quota of the Scheduled Castes candidate. He found that out of eight sanctioned posts, six general candidates are working and the post in question falls under the promotional quota for the Scheduled Castes Candidates as no Scheduled Castes Candidate is working in the institution.
7. Feeling aggrieved by the order of Joint Director of Education dated 28.7.2009, the petitioner preferred the instant writ petition.
8. The respondent No. 2, the Selection Board and respondent No. 5, the Committee of Management have filed their counter-affidavits. The respondent No. 3, the Joint Director Education, Azamgarh Region Azamgarh preferred not to file counter-affidavit in spite of time granted to him. No further time was sought by the learned Standing Counsel.
9. Respondent No. 2 in its counter-affidavit has taken stand that Joint Director has rejected the proposal of the Committee of Management with a direction to send requisition for direct recruitment of a Scheduled Castes Candidate against the vacant post of lecturer (Civics). However, as per office record of the respondent No. 2, no requisition from the said institution was received. The respondent No. 5 in its counter-affidavit has taken stand that the petitioner was duly selected as an Assistant Teacher in L.T. Grade. The various averments made in the writ petition with regard to the vacancy and the resolution passed in favour of the petitioner has not been denied in counter-affidavit of the Management.
10. I have heard Sri Rajiv Mishra, Learned Counsel for the petitioner, Sri J.N. Maurya for the Selection Board, Sri Ramji Tripathi for the Committee of Management and learned Standing Counsel.
11. It is a common ground that in the institution there are eight sanctioned posts of lecturers. At present, there are six lecturers working in the college. All the six lecturers, who are presently working, have been appointed through direct recruitment. Thus, indisputably, the post in question falls under the promotional quota as no teacher under the promotional quota is currently working in the institution.
12. There is no dispute that the petitioner possesses essential qualification for the appointment as lecturer in Civics. He did his post graduation in Civics, Ancient History and Sociology and he is the senior most teacher in the institution. A copy of seniority list has been filed as Annexure 7 to the writ petition, wherein, the petitioner has been shown to be the second senior most teacher. His name finds place at serial No. 2. Sri Narendra Deo Pandey is senior to him. However, he has post graduation degree only in Hindi. Thus, he was ineligible for the promotion and only the petitioner is an eligible candidate for the promotion.
13. Relevant would it be to mention here that currently six lecturers are working. All of them have been appointed by way of direct recruitment and they are working as lecturers in Commerce, Maths, Economics, Hindi, Geography and English. There is no lecturer in the subject to Civics.
14. Regulation 5 (2) of the Chapter 3 of the Regulations, framed under the Intermediate Education Act, enjoins that 50% of the posts shall be filled up by the direct recruitment and rest shall be under promotional quota subject to the availability of the eligible candidates.
15. In view of the said facts, there is no dispute that the post of lecturer in Sociology is under promotional quota. The only question that falls for determination is whether out of four posts one post can be reserved for the Scheduled Castes candidates. This issue is no more res-integra.
16. The Supreme Court in the case of
17. It is apt to quote the relevant part of the judgment of R.S. Garg (supra) which reads 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 Tribes 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.
18. The case of R.S. Garg was followed by a Division Bench of this Court in the case of Smt. Pholpati Devi v. Smt. Asha Jaiswal and others, 2009 (2) ADJ 90 (DB). In this case the facts are strikingly similar to the facts of the case in hand. Smt Pholpati Devi''s case also arose from the dispute of promotion in lecturer grade of an intermediate college. The same issue was also raised and considered by the Division Bench whether a candidate from Scheduled Castes will get promotion under the promotional quota in case the numbers of posts are less than Eve. The Court came to hold that, if there are only four vacancies, no reservation would be available for a Scheduled Castes Candidate as it would exceed 21% of the reservation. The relevant part of the judgment is extracted herein below;
8. Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it cannot be exceeded thereto. In he case in hand, one of the vacancy if treated to be reserved for scheduled caste candidate out of four vacancies, the reservation would come to 25%, which would exceed the maximum extent of reservation prescribed for scheduled caste candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent No. 1 treating one post of lecturer reserved for scheduled castes in promotion quota, therefore, was illegal and has rightly been set aside by the Hon''ble Singled Judge.
19. The judgment of the Supreme Court in R.S. Garg case (supra) and a Division Bench in the case of Smt. Pholpati Devi (supra) were considered by another bench in the case of Dr. Vishwajeet Singh and others v. State of U.P., 2009 (4) ADJ 373. In this case the dispute arose in respect of the selection of lecturers in Graduate and Post Graduate Colleges. The advertisement was issued by the U.P. Higher Education Service Commission inviting applications for a large number of posts of lecturer in different disciplines/subjects in Graduate and Post Graduate colleges. Two issues were raised therein, firstly, that selection can be made subject-wise and college-wise and in case the number of posts in a college is less than five and in case, if there is a single post in a college in a particular subject then in that event no reservation can be made under the provisions of the U.P. Public Service Reservation for Other Backward Classes/Scheduled Castes Act, 1994.
20. The Division Bench relied upon the judgment of R.S. Garg Case and also refer to the case of Smt. Pholpati Devi (supra).
21. A learned Single Judge found that there was conflict between two Division Benches in the judgments of Mahendra Kumar Gond v. State of U.P., 2009 (6) ADJ 674 and the view expressed by another division bench in the case of Dr. Vishwajeet Singh case (supra), referred the two questions to the larger bench, (i) whether the roster in respect of the reservation can be applied with regard to the promotion in respect of Class III posts in Intermediate College where the number of posts is less than five, (ii) whether, there is a conflict between the ratio of the two division bench judgments of Mahendra Kumar Gond (supra) and Dr. Vishwajeet Singh (supra). The Full Bench answered the aforesaid two questions in case of Heera Lal v. State of U.P. and others, 2010 (6) ADJ 1. The Full Bench relying on the judgment of
34. ...
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.
The Full Bench has elaborated the principles very succinctly by giving the example about the applicability of the reservation for Scheduled Castes candidates. The Court followed the principle laid down in the case of R.S. Garg (supra), Smt Pholpati Devi (supra) and Dr. Vishwajeet Singh (supra). The discussions and conclusion which are apt for our purpose is extracted herein below;
32. ...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 availably 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. 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.
22. It is informed at the bar that SLP against the decision of Heera Lal (supra) has been dismissed as withdrawn and the leave has been granted in SLP filed against Dr. Vishwajeet Singh case but no order for interim relief has been passed and the same is still pending.
23. Bearing in the mind, the principles laid down in the aforesaid case, the Court finds that there are only eight sanctioned posts for lecturers in the case in hand. The 50% quota for the promotion come to four posts and as such scheduled castes candidate will have no right to be promoted under the provision of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. If the promotion is made, it would exceed 21 percent, which is not permissible in view of the law laid down in the cases mentioned herein above.
24. In view of the foregoing reasons, the order passed by the Deputy Director, Azamgarh (Annexure 6 to the writ petition) dated 28.7.2009 is not sustainable and deserves to be quashed.
25. Accordingly, the aforesaid order is quashed and the matter is remitted back to the Joint Director to pass a fresh order in the light of the law mentioned herein above.
26. The writ petition is allowed. Parties shall bear their own costs.
