1. Sri Sunil Tiwari holding brief of Sri P. Padia for the petitioner, learned Standing Counsel for respondent No.1 and 2 and Sri Manoj Kumar for respondent No.3 have been heard. As requested by learned counsel for the parties, the writ petition is being decided finally at this stage under the Rules of the Court.
2. The order dated 15th June, 2005 passed by the District Inspector of Schools, Moradabad (hereinafter referred to as 'DIOS') (Annexure No.10 to the writ petition) is impugned in this writ petition aggrieved whereagainst petitioner has sought a writ of certiorari for quashing the same. DIOS has held that post of Lecturer (Geography) is to be filled in by promotion for which respondent No.3 was eligible. He has directed the Committee of Management of Sarvodaya Inter College, Dinari, District Moradabad (hereinafter referred to as "College") to send proposal for promotion of respondent No.3.
3. The facts in brief giving rise to the present dispute are as under.
4. The College is an Intermediate educational institution recognized by the Board of High School and Intermediate and is governed by U.P. Intermediate Education Act, 1921 (in short "1921 Act"), The Uttar Pradesh Secondary Education Services Selection Board Act, 1982 Act (in short "1982 Act") and The Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 Act (in short "1971 Act").
5. There are six sanctioned post of lecturers in the College i.e. Lecturer in Hindi, Sanskrit, Economics, Civics, English and Geography. On 30th June, 2002, one Chet Ram, working as Lecturer (Hindi), retired on attaining the age of superannuation. The position of teachers working on various posts of Lecturer as on 1st July, 2002 (i.e. after retirement of Chet Ram) was as under:
1. Bharat Singh Direct Recruitment Lecturer (Civics)
2. Jai Pal Singh Promotion Lecturer (Economics)
3. Hari Om Singh Promotion Lecturer (Sanskrit)
4. Fakir Mohd. Promotion Lecturer (Geography)
5. Noman Ahmad Direct Recruitment Lecturer (English)
6. After retirement of Sri Chet Ram, Lecturer (Hindi), on 1st July, 2002, three posts of lecturers were already filled in by promotion. Thus quota of promotion was full and a vacancy existed for direct recruitment.
7. On 30th June, 2003 Sri Fakir Mohammad and Noman Ahmad retired on attaining age of superannuation causing vacancies on the post of Lecturer (Geography) and (English). However, Sri Thakari Singh, an Assistant Teacher, L.T.Grade, who was eligible and senior, even before occurrence of any vacancy represented the Management in early part of 2002 to promote him on the post of Lecturer (Hindi). The Management resolved to promote him on such post. The resolution was passed on 28th February, 2002 by the Management in anticipation of vacancy. On occurrence of vacancy on 1st July, 2002, after retirement of Chet Ram on 30th June, 2002, Sri Thakari Singh was promoted as Lecturer (Hindi) on adhoc basis in promotion quota subject to approval by the competent authority under 1982 Act ignoring the fact that no vacancy in promotion quota existed. Papers for approval of Sri Thakari Singh were forwarded to DIOS on 26th September, 2002.
8. The Management further in anticipation of two vacancies of Lecturer (Geography) and Lecturer (English) due to retirement of Sri Fakir Mohd. and Noman Ahmad on 30th June, 2003 resolved to send requisition to Selection Board and sent the same on 27th July, 2002 for filling in the said two post by direct recruitment. The DIOS by his letter dated 12th August, 2002 forwarded the said requisition to Selection Board, Allahabad. The Management of the College by letter dated 14th October, 2003 informed DIOS that in October, 2003, one post of lecturer i.e. Lecturer (Civics) was occupied by a candidate appointed by direct recruitment and two posts of lecturer i.e. Lecturer (Economics) and Lecturer (Sanskrit) are occupied by the promotees while three posts of lecturer are vacant i.e. Lecturer (Hindi), Lecturer (Geography) and Lecturer (English). One post of Lecturer (Hindi) is to be filled in by promotion reserved for promotion of a Backward Class candidate and remaining two posts of Lecturer (Geography) and (English) to be filled in by Scheduled Caste candidate and other Backward Class candidate respectively by direct recruitment. It further says that the post of Lecturer (Hindi), which was to be filled in by promotion of Other Backward Class candidate, has been filled in by promoting senior most eligible teacher of Backward Class, and the documents have been sent for approval. It also says since no vacancy of lecturer (Hindi) has been requisitioned to be filled in by direct recruitment, hence the question of adjustment of any candidate against that vacancy do not arise. Consequently DIOS sent a letter dated 8th July, 2004 to the Commission informing that the post of Lecturer (Geography) is to be filled in by a Scheduled Caste candidate and Lecturer (English) is to be filled in by a Backward Class candidate. This letter, it appears, was issued by D.I.O.S. without examining the matter at all and in a mechanical manner.
9. Respondent No.3 filed a writ petition No.47959 of 2004 staking his claim to the post of Lecturer (Geography) contending that he is eligible for promotion on the said post and it ought not to be filled in by direct recruitment. It has wrongly been notified by DIOS to the Board for direct recruitment and therefore mandamus be issued to DIOS to approve him for promotion to the post of Lecturer (Geography). The writ petition was disposed of on 10.11.2004 with the following direction:
"As such, liberty is given to petitioner to make fresh representation alongwith certified copy of this order within three weeks from today before the D.I.O.S., Moradabad, who shall call for entire record from the Committee of Management of the Institution and take appropriate decision by means of reasoned and speaking order, preferably within a period of six weeks from the date of presentation of a certified copy of this order. Whatever is the outcome of the same, same be communicated to petitioner forthwith.
With these observations, writ petition is disposed of"
10. Consequently, matter came up before DIOS. The Management placed its stand vide letter dated 21st February, 2005, (copy is on record as Annexure 9 to the writ petition).
11. The DIOS has passed the impugned order on 15th June, 2005 holding that the post of Lecturer (Geography) was to be filled in by promotion in respect whereof respondent No.3 was eligible and thus has directed the Management to send proposal for promotion of respondent No.3.
12. Learned counsel for the petitioner contended that the Management having already resolved to promote Thakari Singh as Lecturer (Hindi) in the vacancy caused on 1st July, 2002 after retirement of Sri Chet Ram on 30th June, 2002, it was incumbent upon DIOS to consider the subsequent vacancies occurred on 30th June, 2003 for direct recruitment and the decision, impugned in the writ petition, is illegal.
13. Learned Standing Counsel as well as Sri Manoj Kumar, learned counsel for respondent No.3 justified the order of D.I.O.S. relying on the reasons stated therein and contended that the post of Lecturer (Hindi) could not have been filled in by promotion, as claimed by the petitioner.
14. Parties have not disputed that there were only six sanctioned post of Lecturer in the College. On 30th June, 2002, when Sri Chet Ram, Lecturer (Hindi) retired, the position in respect to other posts of lecturer has already been stated above, and, it is just by way of repetition, was as under:
Sri Bharat Singh Direct Recruitment Sri Hari Om Singh Promotion Fakir Mohd. Promotion Sri Jai Pal Singh Promotion Noman Ahmad Direct Recruitment
15. Thus, three posts of lecturer were already occupied by the promotees and therefore, on 1st July, 2002, there was no vacancy in promotion quota. The vacancy caused due to retirement of Sri Chet Ram, Lecturer (Hindi) could have been filled in only by direct recruitment and not by promotion. At the best, so long a candidate selected by the Commission is not available, Thakari Singh a senior most Assistant Teacher, L.T.Grade could have been allowed adhoc promotion on the said post but the post of Lecturer (Hindi) could not have been filled in by promotion since on 1st July, 2002, there was no vacancy under promotion quota, three promotees already holding posts of Lecturer in different subjects. One vacancy under promotion quota became available only on 1st July, 2003 after retirement of two lecturers i.e. Fakir Mohd. and Noman Ahmad, out of which one was a promotees. Therefore, for making promotion, the vacancy was available only on 1st July, 2003 and not earlier thereto. DIOS in taking the view that one of the vacancy occurred on 1st July, 2003 after retirement of two lecturers on 30th June, 2003 can be filled in by promotion, since against one of those two vacancies one was held by a promotee, and thus respondent No.3, being eligible to be considered for promotion as lecturer (Geography), can be directed to be considered for promotion, provided he is senior most. Such a view could have been justified and valid but unfortunately that is not the position.
16. The further submission of learned counsel for the petitioner that post of Lecturer (Hindi) could be filled in by a reserved category candidate and also that of Lecturer (Geography) by another reserved category candidate, in view of the decision taken by the Management, also in my view lack substance.
17. Now, I propose to deal both these aspects collectively. Admittedly, total number of sanctioned posts being six, from two sources of recruitment, the number of vacancies liable to be filled in by direct recruitment and promotion comes to three each. That being the position, none of the vacancy from either of two sources could have been reserved for any of the category namely Scheduled Caste/Scheduled Tribe or Other Backward Class. This aspect has been considered in detail in several cases. Referring to an earlier Division Bench Judgment of this Court in Smt. Pholpati Devi Vs. Smt. Asha Jaiswal and others, 2009(2) ADJ 90, in Nem Singh Vs. State of U.P. & others 2009 (5) ESC 3550 (All), this Court considered a similar question and in para 8, 9, 10, 11 and 13 held as under:
"8. The short questions up for consideration in this case are two as under:
1.Whether for applying reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes the quota is to be considered in respect to the total number of posts in the cadre irrespective of the source from which they are to be filled in; and
2.Whether in the light of Rule 10 and 14 of 1995 Rules the eligibility of the candidate in promotion quota is to be considered confining to a reserve category or the candidates available for promotion as a whole irrespective of the relevant category.
9. It cannot be disputed that reservation made for Scheduled Castes, Scheduled Tribes and Other Backward Classes in services vide Act, 1994 is applicable for appointment to the post of Lecturer in the College in the case in hand also. Section 3 thereof provides for the extent of reservation in favour of the above mentioned three categories and it reads as under:
"3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes-(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens,
(a) in the case of Scheduled Castes twenty-one per cent;
(b) in the case of Scheduled Tribes two per cent;
(c) in the case of case other twenty seven per cent;
backward classes of citizens.
Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule II.
(2) If, even in respect of any year of recruitment, any vacancy reserved for any category of persons under sub-section (1) remains unfilled, special recruitment shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category.
(3) If, in the third such recruitment referred to in sub-section (2), suitable candidates belonging the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes.
(4) Where, due to non-availability of suitable candidates any of the vacancies reserved under sub-section (1) remains unfilled even after special recruitment referred to in sub-section (2), it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub-section (1) shall not exceed fifty one per cent of the total vacancies.
(5) The State Government shall, for applying the reservation under sub-section (1), by a notified order, issue a roster which shall be continuously applied till it is exhausted.
(6) If a persons belonging to any of the categories mentioned in sub-section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub-section (1).
(7) 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. A bare perusal of Section 3(1) of Act, 1994 shows that the limit of reservation of vacancies prescribed therein is in respect to the direct recruitment and the roster prescribed under sub-section 5 is also with respect to sub-section 1, i.e., for direct recruitment. With respect to promotion sub-section 7 of Section 3 provides that the Government Orders as applicable providing for reservation in promotion shall continue to apply till they are modified or revoked. It is not in dispute that in the matter of promotion also reservation to the extent as provided under sub-section 1 of Section 3 to the above three categories has been made applicable. The purpose, however, for referring the above provision is to show that the legislature also has considered reservation in respect to direct recruitment and promotion separately treating the same different in the context of reservation. The reason is quite obvious. The persons who will be entitled to be considered in the two kinds of recruitment will be different inasmuch as the word "promotion" itself concede the persons who are already in service who will be considered but in case of direct recruitment it relates to selection and appointment from open market of the persons who are not already in service of the employer who has resorted to the concerned direct recruitment. The procedure and criteria for two kinds of selection is also different. Therefore, by no stretch of imagination it can be held that for the purpose of applying reservation under Section 3 of Act, 1994 the posts/vacancies as are available for direct recruitment can be clubbed with those which are to be filled in by promotion in order to work out the vacancy or post, if any, available for reservation. For example if there are 10 posts and all are to be filled in by direct recruitment, the reservation prescribed in sub-section 1 of Section 3 of Act, 1994 would be applicable to all the 10 posts but if 5 are to be filled in by promotion and 5 by direct recruitment, for the purpose of determining the vacancy, if any, available for reservation, both have to be considered separately and cannot be clubbed in order to find out the number of vacancies/posts available for reservation in a particular category.
11. A similar controversy came to be considered before this Court in Smt. Pholpati Devi (supra) where there were 7 sanctioned posts of Lecturers and taking the same together the authorities decided to fill in one post from reserve category, i.e., scheduled castes. The Court held as under:
"In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at the best four posts would have been available for one source of recruitment, i.e., direct recruitment or promotion. The reservation for scheduled castes is 21%. If we treat one of the vacancies in either of the source of recruitment in the institution as reserved for scheduled caste, it would be more than 21%. The Apex Court in R.S. Garg Vs. State of U.P. & others 2006 (6) SCC 430 has held 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 Tribe 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 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."
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 the 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 casts in promotion quota, therefore, was illegal and has rightly been set aside by Hon'ble Single Judge."
"13. In view of the above exposition of law the clubbing of vacancies which were to be filled in by promotion alongwith those which were to be filled in by direct recruitment was impermissible in law and the impugned order having been passed ignoring this aspect of the matter is wholly illegal."
18. This is also in consonance with the law enunciated by Full Bench in Civil Misc. Writ Petition No. 51617 of 2009 (Heera Lal Vs. State of U.P. & Ors.) decided on 9th July, 2010.
19. In view of the above authorities, this Court has no hesitation in observing that none of the vacancies on the post of Lecturer, to be filled in from two different sources of recruitment namely direct or promotion could be reserved for any of the category under U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994. Besides, as discussed above, the post of Lecturer (Hindi), occurred on 01.07.2002 could not be filled in by promotion but ought to have been notified for direct recruitment.
20. This Court also would like to observe that it is not always open to the Management to decide in its sweet will to fill in a post by direct recruitment or promotion when in law it can be filled in only in a particular manner, as, such an uncontrolled discretion, if conceded in favour of the Management, it would cause serious prejudice to an eligible teacher and/or other employee in the College concerned who may be entitled to be considered for promotion according to qualification, eligibility and seniority. But if for some or the other reason the Management has any grudge against such a person, it may defeat his/her such right. It is also really unfortunate that Educational Authorities while forwarding requisition sent by the Management to the Commission have not applied their mind to all the relevant fact and acted in a mechanical manner.
21. The way in which Educational Authorities have acted in this case crosses the boundary where it becomes a malicious act and therefore, must be deprecated in the strongest words. This Court has no hesitation in observing that if the Educational Authorities would have been a little cautious and vigilant in discharge of their functions, this litigation and harassment to the teachers of the College could have been avoided. That is not so unfortunately. Of late, it appears that the Educational Authorities are also taking sides and proceed blindly even if the valuable rights of an employee or teacher of a College are being defeated by the Management. The very purpose of having such a hierarchy of educational authorities for keeping a strict vigil on the Management whimsical activities is being frustrated by such attitude and activities of Educational Authorities.
22. Be that as it may, but at last the D.I.O.S. concerned having passed the impugned order has redressed the grievance of an unfortunate teacher of the College and that is the only redeeming feature of this case.
23. In the result, I do not find any legal or factual error in the order impugned in the writ petition warranting any interference. The petitioner has failed to point out any error apparent on the face of the record of the impugned order. The writ petition is devoid of merit. Dismissed.
Dated.14.02.2011 KA