JUDGMENT V.M. Sahai, J.
1. The short question that arises for consideration in this writ petition is whether in an institution where there is only one post can it be filled by direct recruitment or by promotion under Regulation 2 (2) of Chapter III of the regulations framed under the U. P. Intermediate Education Act, 1921.
2. The contextual facts in Writ Petition No. 6681 of 1990 depicts that the petitioner Palak Dhari Yadav a Class IV employee working since 1980 in D.A.V. Girls Higher Secondary School, Mau Nath Bhanjan, Mau (in brief institution) was eligible and qualified to be promoted as clerk. There were three other class IV employees who were senior to him but were not eligible and qualified for promotion. There was only one post of clerk in the institution, which was vacant. The management filled the post by direct recruitment and appointed respondent No. 4 Sanjay Kumar Upadhyay on 18.8.1989. The petitioner on 2.9.1989 made representation before respondent No. 1 that he may be promoted to the post of clerk as he is eligible for the same. The respondent No. 1 on 16.9.1989 wrote to the management for consideration of his claim. Since nothing was done by the management the respondent No. 1 sent a reminder on 23.1.1990. Thereafter, he filed writ petition before this Court on 8.3.1990. It was dismissed on the same day. The appointment of respondent No. 4 was approved on 7.3.1990 by Regional Inspectress of Girls School. The petitioner now has challenged the order of approval dated 7.3.1990. He claimed a direction to promote him as well.
3. Writ Petition No. 19091 of 1990 has been filed by Sanjay Kumar Upadhyay for payment of salary. He filed a certificate of the Principal of the institution that he is continuously working in the institution.
4. I have heard Dr. R.G. Padia, learned senior counsel assisted by Shri Prakash Padia appearing for the petitioner and Sri G.N. Verma, learned senior counsel assisted by Shri Dhananjay Prasad appearing for respondent No. 4 in Writ Petition No. 6681 of 1990. The learned counsel for the parties in Writ Petition No. 19091 of 1990 have been heard. Standing counsel has also been heard. Both the Writ Petitions are based on same facts, therefore, they are taken up together for final disposal. Writ Petition No. 6681 of 1990 is treated as the leading petition.
5. Counsel for the petitioner Dr. Padia relied on Regulation 2 (2) of Chapter III of the Regulations framed under the U. P. Intermediate Education Act. 1921 (in brief Regulation) and urged that in accordance with it. 50% sanctioned posts of head clerk and clerk is required to be filled by promotion from eligible class IV employees of the institution. He pointed out that the method of calculation is provided in the note appended to Regulation 2 (2). According to him if the regulation is construed with the note properly then the only result will be where there is only one post of clerk in the institution it had to be reserved for class IV employees. On the other hand. Sri G.N. Verma argued that where there is only one post of clerk no reservation can be made for the promotees and it could only be filled by direct recruitment. He urged that the respondents did not commit any error in filling the post by direct recruitment. It was in accordance with law and respondent No. 4 is entitled to be continued in service and paid his salary.
6. For better understanding Regulation 2 of the regulations is extracted below :
^^2- 1 fdlh laLFkk esa fu;qf gsrq fyfid ,oa prqFkZ oxhZ; deZpkfj;ksa dh U;wure 'kSf{kd ;ksX;rk ogh gksxh tks jktdh; mPprj ek/;fed fo|ky;ksa ds led{kh; deZpkfj;ksa ds fy, le;≤ ij fu/kkZfjr dh xbZ gks A 2 iz/kku fyfid ,oa fyfid Js.kh ds Lohr inksa dh dqy la[;k dk ipkl izfr'kr laLFkk esa dk;Zjr fyfidksa ,oa prqFkZ Js.kh deZpkfj;ksa esa ls inksUufr }kjk Hkjk tk,xk A ;fn deZpkjh in gsrq fu/kkZfjr vgZrk j[krk gks rFkk og vkxs in ij 5 o"kZ dks vfojy ekSfyd lsok dj pqds gksa rFkk mudk lsok vfHkys[k vPNk gks inksUufr vuqi;qDr dks NksM+dj T;s"Brk ds vk/kkj ij dh tk;sxh A bl lEcU/k esa ;fn dksbZ deZpkjh izcU/k lfefr ds fdlh fu.kZ; ;k vkns'k ls O;fFkr gks rks og mlds fo:) ,sls fu.kZ;
;k vkns'k ds fnukad ls 2 lIrkg ds Hkhrj fujh{kd dks vH;kosnu dj ldrk gS A fujh{kd ,sls vH;kosnu ij ,sls vkns'k ns ldrk gS ftUgsa og mfpr le>ss A fujh{kd dk fu.kZ; vfUre gksxk vkSj izcU/kkf/kdj.k 'kh?kz dk;kZfUor fd;k tk;sxk A fVIi.kh&& ipkl izfr'kr inksa dh lax.kuk djus esa vk/ks ls de Hkkx dks ,d le>k tk;sxk A** Regulation 2 (2) and the note appended thereto are important. Regulation 2 (2) clearly provides that 50% of the total sanctioned posts of head clerk or clerk shall be filled by promotion from amongst class IV employees of the institution if they possess the requisite qualifications as provided by the regulations. There is no dispute if there are two posts then one has to be filled by promotion. The question that has arisen for consideration is if there is only one sanctioned post whether it can be reserved for promotion by taking aid of the note appended to Regulation 2 (2) of the regulations. Dr. Padia learned counsel for the petitioner vehemently argued that the only construction of the note to Regulation 2 (2) of the regulations can be that where there is only one post it can be filled by promotion only. According to him since half is equal to one the only post of clerk has to be treated reserved to be filled by Class IV employee. I am not inclined to accept the argument of Dr. Padia. The rule making authority while enacting Regulation 2 (2) read with note appended to it did not visualise reservation of only one post for promotion. There is no such indication. The language is clear. It presupposes plurality of posts. The note appended to it has to be read in a manner, which advances the objective of the regulation. The note comes into play where there is more than one post. The principle on which the theory of 50% reservation in matters of promotion is based is to give adequate opportunity to the employees in matters of promotion so that they may not feel stagnated. However, where there is solitary post it is difficult to accept the argument that it can be filled by promotion only. If the argument of Dr. Padia is accepted that as per the note appended to Regulation 2 (2) ff there is one post and if 50% of one post will come to half and half as per note has to be treated as one then the only situation which emerges is that the single post of clerk has to be reserved exclusively for promotion, which shall amount to 100% reservation by promotion. This does not appear to be intention of Regulation 2 (2).
7. The Constitution Bench of the Apex Court in Post Graduate Institution of Medical Education and Research, Chandigarh v. Faculty Association and others, AIR 1998 SC 1767, while considering reservation, under Articles 16(1), 16(2), 16(4) and 16(4A) of the Constitution held that there can be no reservation if there is only one post to be filled in the cadre. Though the Apex Court was considering reservations under Article 16 of the Constitution the principles laid in the judgment can be gainfully applied while considering note appended to Regulation 2 (2) of Chapter III of the regulations. The question before the Court was whether there could be reservation under Article 16 on a single post in the cadre. It was held that if the principle of reservation was applied to a single post it was bound to result in cent per cent reservation, which was not permissible. Same would be the result if the argument of Dr. Padia is accepted. In an institution where there is only one post of clerk it would become reserved for class IV employee. That would be against the scheme and objective of the regulation.
8. In C.M. Writ Petition No. 19091 of 1990 Dr. Padia argued that no direction for payment of salary can be issued, as there was a stay order in Writ Petition No. 6681 of 1990 and the petitioner could not have been continued in service. I have examined the interim order dated 22.3.1990. It was passed after Sanjay Kumar Upadhyay had joined his duties and his appointment had been approved by Regional Inspectress of Girls School on 7.3.1990. The interim order was only to the effect that the vacancies in class III posts in the college shall not be filled. Since the petitioner had not only been appointed on 18.8.1989 and financial approval to his appointment had also been given by the Regional Inspectress of Girls School on 7.3.1990 and he had joined as well before the interim order was passed, the order dated 22.3.1990 passed in C. M. Writ Petition No. 6681 of 1990 would not stand in way of issuing the directions. Further the petitioner in C. M. Writ Petition No. 19091 of 1990 has been working since the date of his appointment under a valid order, he cannot be denied the relief.
9. In the result, Civil Misc. Writ Petition No. 6681 of 1990 is dismissed. The stay order dated 22.3.1990 is discharged.
10. Civil Misc. Writ Petition No. 19091 of 1990 is disposed of in the light of what has been stated above and a direction is issued to the respondents to pay entire arrears of salary of the petitioner, if it has not already been paid, within a period of two months from the date of production of a certified copy of this order before the respondents.
11. In both the Writ Petitions there shall be no order as to costs.