JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. Heard Sri V.K. Goel, learned Counsel appearing for the writ petitioner, Sri A.P.S. Raghav, learned Counsel appearing for respondent No. 3 and Sri Ran Vijay Singh, learned Standing Counsel.
2. In the writ petition, by order dated 28.10.2005, the learned Single Judge has referred the following question for consideration by a larger Bench:
Whether a single post of class III available in an Intermediate College governed by the 1921 Act can be filled by way of promotion and whether the case of Palak Dhari Yadav reported in 1999 Vol. 3 U.P.L.B.E.C. 2315 has been correctly decided keeping in view the opinion expressed by another Single Judge in writ petition No. 4165 of 2004 as also the pronouncement of the Apex Court in the case of B. Badami v. State of Mysore and All India Federation v. Union of India?
3. The brief facts necessary for appreciating the question referred by the learned Single Judge be noted.
4. The writ petitioner has been working as a Class-IV employee in a recognised aided Institution governed by U.P. Intermediate Education Act, 1921. In the Institution, there is only one sanctioned post of Clerk, which fell vacant due to death of its last incumbent, namely, Ratan Pal Singh on 15.12.1994. The Committee of Management passed a resolution in favour of the writ petitioner promoting him from Class-IV to the post of Clerk. The District Inspector of Schools, vide his letter dated 25.2.1995 approved the promotion of the writ petitioner as Clerk, and the writ petitioner thereafter started functioning on the post of Clerk. The father of respondent No. 3-Ratan Pal Singh abovementioned, who was working as Clerk in the Institution died. Thereafter the respondent No. 3 claimed his appointment on compassionate ground on the post of Clerk; respondent No. 3 was appointed as a Clerk against supernumerary post by the order of the District Inspector of Schools dated 7.4.1995. In the year 2004, one vacancy of Clerk arose at Rajendra Prasad Intermediate College, Vilaspur, District Gautam Budh Nagar. The District Inspector of Schools passed an order dated 13.12.2004 directing the adjustment of respondent No. 3 in the aforesaid Institution. Respondent No. 3 could not join and subsequently the District Inspector of Schools, vide his letter dated 9.7.2005 cancelled the attachment of respondent No. 3 as well as the promotion of the writ petitioner vide his order dated 15.10.2005. The District Inspector of Schools in his order has taken the view that since there was only one post of Clerk in the Institution, the said post cannot be filled by promotion of the writ petitioner. The District Inspector of Schools was of the view that single post can never be filled by promotion. The said order was challenged by the writ petitioner in the writ petition, and after hearing the learned Counsel for the parties, the learned Single Judge referred the question for our consideration, as noted above.
5. Chapter-III Regulation-2 of the U.P. Intermediate Education Act, 1921 has been framed under Section 16-G of the 1921 Act providing for promotion from Class-IV to Class-Ill. Chapter-III Regulation-2, which is relevant for the purposes of this case, is quoted below:
2. (1) For the purpose of appointments of clerks and Fourth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools.
(2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employee possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit.
If any employee is aggrieved by any decision or order of the management committee in this respect then he can make representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management.
Note.-In calculating fifty per cent of posts parts less than half would be left and half or more that half post would be deemed as one.
6. A learned Single Judge of this Court in Palak Dhari Yadav v. Regional Inspectors of Girls Schools and Ors. reported at 1999 (3) UPLBEC 2315 considered the Regulation 2(2) of Chapter-III and took the view that a single post of Clerk cannot be filled up by promotion. The learned Single Judge placed reliance on the judgment of the apex court, reported at : Post Graduate Institution of Medical Education and Research, Chandigarh v. Faculty Association and Ors. and has taken the view that permitting the filling up of a single post by promotion is 100% reservation by promotion, and the ratio laid down by the apex court in the said judgment is also applicable with regard to the promotion. The learned Single Judge also took the view that the rule making authority while enacting Regulation 2(2) did not visualise reservation of only one post for promotion. It was further held that the note comes into play only where there is more than one post. The learned Single Judge doubted the correctness of the said decision and has made reference.:
7. Sri V.K. Goel, learned Counsel appearing for the writ petitioner submitted that a bare reading of the statutory scheme as is delineated from reading of Regulation 2(2) and the note indicates that if there is only one post, the said post can be filled by promotion. He submits that the promotion is a different concept as compared with the reservation and the judgment of the apex court, which has been relied by the learned Single Judge in Palak Dhari Yadav case (supra) had no application. He submits that Regulation 2(2) provides for channel of promotion from two sources, which channel of promotion is inviolable and can be only changed by amendment of the Rules. He has placed reliance on the judgments of the apex court, reported at 1999 SCC (L&S) 513: State of Punjab and Ors. v. Dr. R.N. Bhatnagar and Anr. ; Kuldeep Kumar Gupta and Ors. v. H.P.S.E.B. and Ors. and ; V.B. Badami and Ors. v. State of Mysore and Ors..
8. Sri A.P.S. Raghav, learned Counsel appearing for respondent No. 3 has submitted that promoting a single post of Clerk is nothing but 100% reservation denying the rightful claim of other candidates to participate in the recruitment of the post. He submits that in event a single post is to be filled by promotion, no chance will be availed by candidates claiming appointment on the post. He has placed reliance on the same judgment of the apex court in Post Graduate Institution of Medical Education and Research, Chandigarh (supra).
9. Learned Standing Counsel has also reiterated his submission supporting the view taken by this Court in Palak Dhari Yadav case (supra). Learned Standing Counsel submits that the applicability of the note will arise only where there are more than one post. He submits that a single post of Clerk can never be filled by promotion.
10. We have considered the submissions and perused the records.
11. For the filling up of a post by promotion, it is for the rule making authority to provide for the manner and procedure. Regulations have been framed providing for procedure and manner for making appointment on various Class-Ill and Class-IV posts. The rule making authority has provided that 50% post of the clerical cadre including the post of head clerk shall be filled by promotion from the serving Class-IV employees. The promotion is a right given by the rule making authority to the existing Class-IV employees of an Institution. For knowing the exact scheme and the percentage of the promotion on the posts, which are to be filled up, we have to revert to Regulation 2(2). A plain reading of the Regulation 2(2) especially the Note makes it clear that in calculating fifty per cent of posts parts less than half would be left and half or more than half would be deemed as one. Thus the Note contemplates that half or more than half post would be deemed as one. The note is a part of Regulation 2 and provides for filling up 50% post of total number of sanctioned posts through promotion. Thus, if only half falls in promotion quota, the same will be filled up by promotion.
12. Before proceeding any further, the submission of the learned Standing Counsel that note will come into play only where there are more than one post, needs to be considered. In an Education Institution receiving the aid from the State, the posts are created by the Director of Education exercising powers under Section 9 of the Act 24 of 1971. There are no such rules that there has to be more than one posts of Clerk in every institution; there are large number of Institutions, where only one post of Clerk is sanctioned, as in the present case. Section 13(2) of the Uttar Pradesh General Clauses Act, 1904 provides that words in the singular shall include the plural, and vice versa. Section 13 of the Act is quoted below:
13. Gender and number.-In all [Uttar Pradesh] Acts, unless there is anything repugnant in the subject or context,-
(1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa.
13. Thus a bare reading of note of Regulation 2(2) of the Regulations makes it clear that if there is only one sanctioned post, the same is to be filled up through the channel of promotion since 50% of one shall be half and half or more than half is to be deemed as one, as per the legal fiction contemplated in the note.
14. The learned Single Judge in Palak Dhari Yadav (supra) has placed reliance upon the judgment of the apex court in the case of Post Graduate Institution of Medical Education and Research, Chandigarh (supra). The apex court in Post Graduate Institution of Medical Education and Research, Chandigarh (supra) was considering the question of applicability of reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes categories for filling the posts. The concept of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes referable to Article 16(4) of the Constitution is a different concept as compared to the right of promotion, which is a right given to existing employees. The reservation, as contemplated under Article 16(4), is a different concept with entire different object. The judgment relied upon by the learned Single Judge in Palak Dhari Yadav (supra) was not a case dealing with the promotion or right of serving employees.
15. The Apex Court in State of Punjab and Ors. (supra) had occasion to consider almost similar controversy. The Punjab Medical College Education Service (Class-I) Rules, 1978 provided for method of appointment, 75% by promotion and 25% by direct recruitment. The question arose in that context. The submission raised before the apex court that in view of the observations made in R.K. Sabharwal v. State of Punjab reported at , the determination as to whether the vacancy will go to the promote or direct recruitment will be decided. The submission was made before the apex court that the judgment of R.K. Sabharwal's case (supra), which was dealing with the reservation to the Scheduled Castes, Scheduled Tribes, and Other Backward Classes under Article 16(4), has nothing to do, while interpreting the Rules pertaining to the quota fixed for only by promotion or direct recruitment, this submission was accepted by the apex court. In the aforesaid judgment, the apex court had also occasion to consider the Post Graduate Institution of Medical Education and Research, Chandigarh (supra) and held that the judgment of Post Graduate Institution of Medical Education and Research, Chandigarh (supra) had no applicability, while considering the quota for promotion and direct recruitment. Following was observed by the apex court in paragraph 12:
12. Before parting with the discussion, we may mention one submission placed for our consideration by learned Counsel for the respondent. Placing reliance on a latter Constitution Bench judgment in Postgraduate Institute of Medical Education & Research v. Faculty Assn. it was contended that this Court in the light of R.K. Sabharwal case held that where there was only one post in a cadre, there could not be any reservation under Article 16(4) for S.Cs, STs and BCs. Similarly, if there is one post of Professor, Rule 19 may not apply. In this connection, paras 34 and 35 of the Report at p.23 were pressed into service. Ray, J., speaking for the Constitution Bench, stated in the said paragraphs as under: (SCC p.23, paras 34-35)
34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible within the constitutional framework. The decisions of this Court to this effect over the decades have been consistent.
35. Hence, until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with the device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bounds to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.
It is difficult to appreciate how this decision can be of any assistance to learned Counsel for the respondent. It is obvious that in the aforesaid case, the Constitution Bench was concerned with a similar scheme of reservation for S.C., ST and BC candidates and, therefore, Article 16(4) squarely arose for consideration. To that extent, the said decision falls in line with the legal position examined by the earlier Constitution Bench in R.K. Sabharwal case. As we have already opined earlier, the factual and legal situation in the present case is entirely different. We are not concerned with any scheme of reservation under Article 16(4). Therefore, R.K. Sabharwal case cannot be pressed into service, as seen earlier. If that is so, on the same lines the ratio of the decision of this Court in the Postgraduate Institute of Medical Education & Research case would also not apply. While deciding the question of working out the Recruitment Rule for appointment from two sources of promotees and direct recruits wherein only Article 16(1) would hold the field, uninhibited by the exceptional category carved out from the said Sub-article (1) by Sub-article (4) thereof. The first point for determination is, therefore, answered in favour of the appellants and against the respondent.
16. The above judgment of the apex court clearly laid down that while interpreting the Rules regarding promotion concept, the reservation has no application.
17. Thus, we are of the view that in the judgment of Palak Dhari Yadav's case, reliance on the Post Graduate Institution of Medical Education and Research, Chandigarh (supra), was not a correct reliance and the said reliance is clearly misplaced. In Palak Dhari Yadav's case, the learned Single Judge has incorrectly taken the view that the rule making authority while enacting Regulation 2(2) read with Note did not visualise reservation of only one post for promotion.
18. Another judgment relied upon by the learned Counsel for the writ petitioner in Kuldeep Kumar Gupta's case (supra) also supports his submission that providing a quota for promotional cadre does not tantamount to reservation. Following observations were made in paragraph 7:
7. So far as the second question is concerned, we are unable to persuade ourselves to agree with the submission of Mr. Subramanium that providing a quota tantamounts to reservation. Article 16 deals with equality of opportunity in matters of public employment and Article 16(4) enables the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. This Court in Indira Sawhney's case has held that no such reservation is permissible in the promotional posts and to get over the said decision, Article 16(4A) has been inserted by the Constitution (Seventy Seventh Amendment) Act. But we fail to understand as to how providing a quota for a specified category of personnel in the promotional post can be held to be a reservation within the ambit of Article 16(4), Providing a quota is not new in the service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equibalanced and at the same time each category of persons in feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked for different category of persons. In other words, this provision actually effectuates the constitutional mandate engrafted in Article 16(1), as it would offer equality of opportunity in the matters relating to employment and it would not be the monopoly of a specified category of persons in the feeder category to get promotions. We, therefore, do not find any infraction of the Constitutional provision engrafted in Article 16(4) while providing a quota in ...promotional cadre, as in our view it does not tantamount to reservation.
19. In view of the foregoing discussions, we answer the reference in the following words;
(i) A single post of Class-III available in an Intermediate College governed by the 1921 Act can be filled by way of promotion; and,
20. The case of Palak Dhari Yadav (supra) has not been correctly decided.
21. Let our opinion be placed before the learned Single Judge for deciding the writ petition.