Rama Kant Misra Son Of Hira Mani ... vs Committee Of Management, Badri ...

JUDGMENT V.K. Shuklal, J.

1. Brief facts giving rise to instant writ petition in brief is that in the district of Allahabad there is a recognised institution known as Badri Nath Tiwari Inter College, Meja Road, Allahabad. Said institution is a duly recognised institution under the provisions as contained under U.P. Intermediate Education Act 1921 and Regulations framed therein. Said institution is engaged in imparting education up to Intermediate level. Institution in question is also in grant-in-aid list of the State Government and the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act 1971 are also fully applicable to the said institution. After enforcement of U.P. Act No. 5 of 1982 selection and appointment on the post of Principal, Lecturer and L.T. Grade teachers is to be made strictly as per the provisions as contained in U.P. Act No. 5 of 1982and Rules framed. In the institution concerned Ramkant Misra was appointed as L.T. Grade teacher on 01.08.1974. Eight posts of Lecturer have been sanctioned in the aforementioned institution. One such post was being held by one Manideo Singh in the capacity of Lecturer in Civics. Said Manideo Singh retired on 30.06.1992 and thus, a substantive vacancy on the post of Lecturer in Civics fell vacant. Petitioner has contended that out of eight sanctioned post of Lecturer only two post of Lecturer had been filled up by way of promotion and as such said post of Lecturer in Civics fell within promotional quota and as such same ought have been filled up by way of promotion by promoting the petitioner on the post of Lecturer in Civics. As no action was being taken petitioner, Rama Kant Mishra in his turn represented the matter again and again for promoting him, but no action was taken on the same and in the meantime Managing Committee of the institution on the pretext that there is no S.C./S.T. Candidate available in the institution sent requisition to U.P. Secondary Education Services Selection Board on 24.05.1995 for filling up aforementioned vacancy by way of direct recruitment from amongst S.C./S.T. Candidate. When requisition was sent, at this juncture Civil Misc. Writ Petition No. 8540 of 1996 had been filed before this Court by Ramakant Mishra claiming therein promotion on the post of Lecturer in Civics with effect from 01.07.1992. On presentation of aforementioned writ petition, this Court as an interim measure passed following order which is being quoted below:

"Meanwhile, I direct respondent No. 2 to decide the petitioner's representation filed on 20.10.1995 within a period of one month from the date a certified copy of this order is produced before him alongwith the copy of the said order. "

2. Pursuant to directives issued by this Court, Deputy Director of Education proceeded to decide the representation moved on behalf of the Ramakant Mishra petitioner and order was passed on 18.04.1996 by Deputy Director of Education 4th Region Allahabad accepting claim of Ramkant Misra for being promoted under promotional quota as post in question was not liable to be filled up by way of direct recruitment. Said order has been subject matter of challenge before this Court by means of Civil Misc. Writ Petition No. 20453 of 1996 by Managing Committee of the Institution. Thereafter Civil Misc. Writ Petition No. 39441 of 1996 has been filed by Ramkant Misra praying therein that order dated 18.04.1996 be implemented and be given effect to by according promotion to him.

3. Counter affidavit has been filed in Civil Misc. Writ Petition No. 8540 of 1996 and therein Management of the institution has tried to raise dispute in respect of educational qualification of Ramakant Mishra and further it has been asserted that there is no teacher in LT. Grade belonging to S.C/S.T category and as such post in question in all eventuality is to be filled up from amongst reserved category candidate, by way of direct recruitment. Further it has been asserted that one Mahendra Nath Tripathi is senior to the petitioner and it is his claim which is to be accepted and not that of petitioner.

4. Rejoinder affidavit has been filed to this counter affidavit and therein it has been asserted that promotion cannot be permitted to be defeated in the way and manner as has been sought to be done in the present case as such action of the Management in not according promotion to the petitioner is wholly unjustifiable. In respect of post of Lecturer in Civics, alternatively it has been contended that even if said post is reserved for S.C./S.T. Category candidates and there being no one available in the next lower grade it has to be filled up by way of promotion from amongst General Category candidate.

5. After pleadings have been exchanged inter se parties with the consent of the parties all these three writ petitions are being taken up together and are being decided together, as issues raised are interconnected.

6. Issue which has been sought to be raised in this writ petition is (1) whether there is any provision of reservation provided for in the matter of promotion under U.P. Act No. 5 of 1982 and Rules framed thereunder (2) In case it is accepted that there is provision of reservation in promotion and in the next lower grade no one eligible from reserved category is available then whether said post has to be filled up by way of promotion from amongst General Category candidate or by way of direct recruitment from amongst SC/ST category candidate.

7. As question mentioned above was of general importance, as such invitation was extended to Members of "Bar, to advance arguments and pursuant thereto arguments were advanced by various counsel at the Bar in support of the reservation and against the reservation.

8. Sri Raj Kumar jain, Senior Advocate Sri R.K. Singh, Advocate, Sri Anil Bhushan, Advocate and Sri H.S. Misra, Advocate, counsel for the petitioner contended that under U.P. Act No. 5 of 1982, there is no provision of reservation in promotion and now right of promotion has been accepted to be fundamental right, and said right cannot be permitted to be defeated, specially when in the feeder cadre, no one elligible from the reserve category is available, and in that event post has to be filled up from amongst General Category candidate, and promotion quota post cannot be permitted to be diverted under direct recruitment quota, as such action of Respondents cannot be subscribed.

9. Sri Radhey Shyam, Advocate as well as Sudhir Agarwal, Additional Advocate General U.P. submitted with vehemence that once post in question is reserved for S.C./S.T. Category candidate in the matter of promotion by way of roster, then by no stretch of imagination said post could be filled up from amongst General category candidate and the post will have to be filled up by way of direct recruitment in case in the next lower grade, no one from reserved category is available and same cannot be filled up by way of promotion from amongst General category candidate.

10. After respective arguments have been advanced in the present case. Relevant provisions, which cover the field are being looked into. At the point of time when petitioner's promotion was to be adverted to the provision as contained under Section 10 and 11 of U.P. Secondary Education Services Selection Board Act 1982 alongwith relevant Rules 4 to 9 of U.P. Secondary Services Commission Rules 1983 are being quoted below:

U.P. Act No. V of 1982

10. Procedure of selection: - (1) For the purpose of making appointment of a teacher, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Schedule Castes, the Scheduled Tribes and other Backward Class of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Schedule Castes, Schedule Tribes and Other Backward Classes) Act 1994 and notify the vacancies to the Commission in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for appointment to the post of teachers shall be such as may be prescribed:

Provided that the Commission shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-Section (1).

11. Panel of Candidates: -(1) The Commission shall, as soon as may be after the vacancy is notified under Sub-section (1) of Section 10, hold interviews of the candidates and prepare a panel of those found most suitable for appointment.

(2) The panel referred tin Sub-section (1) shall be forwarded by the Commission to the officer or authority referred in Sub-section (1) of Section 10 in such manner as may be prescribed.

(3) After the receipt of the panel under Sub-section (2) the officer or authority concerned shall in the prescribed manner intimate the Management of the Institution the names of the selected candidates in respect of the vacancies notified under Sub-section (1) of Section 10.

(4) The management shall within a period of one month from the date of receipt of such intimation, issue appointment letter to such selected candidate.

(5) Where such selected candidate fails to join the post in such Institution within the time allowed in this behalf, or where such candidate is otherwise not available for appointment, the officer or authority concerned may, on the request of the Management intimate in the prescribed manner, fresh name from the panel forwarded by the Commission under Sub-section (2)] U.P. Secondary Education Services Commission Rules 1983:-

"4. Determination and intimation of vacancies-(1)

(i) The Management shall determine and intimate to the Commission, in the proforma given in Appendix "A" and in the manner hereinafter specified , the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of any post, other than the post of the head of an institution also the number of vacancies to be reserved for the candidates belonging to the scheduled caste, scheduled tribes and other category of persons in accordance with the rule or others issued by the Government in this behalf in regard to the educational institution.

(II) In regard to the post of head of an institution the Management shall also forward, mutatis mutaindis in the manner hereinafter specified the name of two senior most teacher copies of their service records (including character rolls) and such other record or particulars as the Commission may require from time to time.

Explanation - For the purpose of this sub-rule senior most teacher1 mean the senior teachers in the post of the highest grade in the institution institution.

(iii) Where an institution is raised from High School to an Intermediate College, the post of Principal of such a college shall with the approval of the Commission be filled by promotion of the Head master of such High School if he was duly appointed as Headmaster in substantive capacity in accordance with law for the time being in force and posses a good record of service and the minimum qualification prescribed in that behalf or has been granted exemption from such qualification by the Board. Proposal for such promotion shall be submitted by the Management to the Commission mutatis mutandis in the manner hereinafter specified alongwith the service book , character roll and the educational and other qualification of the Headmaster concerned.

(2) The statement of vacancies shall be sent by the Management to the Inspector in quadruplicate by 15th September of the year of recruitment and the Inspector shall after verification forward two copies of the same to the Deputy Director by October 15, with a copy of the Commission.

(3) The Deputy Director shall after keeping a copy, forward the statement received by him under Sub-rule (2) alongwith a consolidated subject-wise statement of various categories of vacancies to the Commission by November 15.

(4) Notwithstanding anything contained in Sub-rule (1), (2) and (3) the time schedule mentioned in the sub-rules shall not apply in respect of recruitment year 1982 and unless any other date or schedule is notified by the Government the Director shall ensure that vacancies are notified to the Commission by February 28, 1983.

Provided that where Government is satisfied that there are sufficient reasons for doing so it may relax the time schedule in the respect of any year generally or in respect of any particular institution.

(5) Where a vacancy occurs at any time during the session or after the requisition has already been sent in accordance with sub-rules (2), (3), (4) or (5) of this rule the management shall notify the vacancy to the Inspector within 15 days of its occurrence and the Inspector and the Deputy Director shall deal with it in the manner mentioned in sub-rules (3) and (4) and within 10 days of its receipt by them.

(6) (i) Where the Management has for any recruitment year, failed to notify the vacancy or the vacancies by the date specified in sub-rules (2) (4) or (5) or has failed to notify the vacancy or the vacancies in the manner prescribed in rule 4 or Rule 9 the Commission may require the Inspector to notify the vacancy or the vacancies in the institution under his jurisdiction to the Commission by such date as the Commission may specify.

(ii) Where the Commission requires the Inspector to notify the vacancy or the vacancies under paragraph (1) of this Sub-rule the Inspector shall notify the same in accordance with Rule 4 or as the case may be Rule 9 of these rules and the vacancy or the vacancies so notified shall be deemed to be notified by the Management.

5. Notification of vacancies - The Commission shall, in respect of vacancies to be filled by direct recruitment advertise the vacancies in at least two newspapers having wide circulation in the State and shall also notify the same to the Deputy Director. Such advertisement or notifications shall, inter alia mention the names of the institutions and places where they are situated and shall require the candidates to give, if he so desires the choice of not more than five institutions in order to preference. Where a candidate wishes to be considered for particular institution or institutions only and for no other institution, he shall mention the fact in his application.

6. Procedure for recruitment- The Commission shall scrutinize the applications and having regard to the need of securing due representation of candidate belonging to the Scheduled Castes and Scheduled Tribes and other categories referred to in Rule 4 call for interview such number of candidate as it may consider proper:

Provided that in respect of the post of the head of an institution the Commission shall also call for interview two senior most teachers of the institution whose name are forwarded by the management under Sub-rule (1) Rule (4):

Provided further that if on account of excess number of applications or for any other reasons, the Commission considers it desirable to limit the number of candidates to be called for interview, if may-

(i) In the case of the post of a teacher, not being the post of the head of an institution, either hold preliminary screening on the basis of academic record or hold a competitive examination; and

(ii) in the case of the post of the head of an institution hold preliminary screening on the basis of academic record, teaching and administrative experience.

Provided also that the number of candidates to be called for interview for any category of post shall, as far as possible, be not less than five times the number of vacancies.

7. Perparation of panel- (1) The Commission shall prepare an institution-wise panel of those found most suitable for appointment and arrange them in order of merit, inter alia mentioning-

(i). the name of the institution and where it is situate;

(ii) the subject in which vacancy existed and selection made;

(iii) names of selected persons in order of merit and with due regard to their preference for appointment in a particular institution (2) the Panel prepared under Sub-rule (1) shall hold good for one year from the date of its notification by the Commission.

8. Notification of selected candidates- 1 The Commission shall forward the panel referred to in Rule 7 in quadruplicate to the Deputy Director and shall also notify the same on its notice board and publish it in such other manner as it may consider proper.

(2) Within 15 days of the receipt of the panel by him, the Deputy Director shall notify it on his notice board and publish it in such other manner as it may consider proper.

(2) Within 15 days of the receipt of the panel by him, the Deputy Director shall notify it on his notice board and send two copies thereof to the Inspector.

(3) Within 10 days of the receipt of the panel by him, the Inspector shall-

(i) notify it on the notice board:

(ii) Intimate the name of selected candidates, standing first in order of merit and where there are more than one vacancies as many names in order of merit as there are vacancies to the Manager of the concerned institution with directions that no authorisation under resolution of the Management an order of appointment in the proforma given in Appendix "B" be issued to the candidate by registered post within one month of the receipt of intimation requiring him to join duty within 10 days of the receipt of the order or within such extended time, as may be allowed to him by the Management and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.

(iii) Send an intimation to the candidate, referred to in Clause (ii) with directions to report to the Management within 10 days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him by the Management.

(4) The Manager shall comply with the directions given under Sub-rule (3) and report compliance to the Commission through the Inspector.

(5) When the candidate referred to in Sub-rule (3), fails to join the post within the time allowed in the letter of appointment or within such extended time as the management may allow in this behalf or where such candidate is not available for appointment the Inspector may on the request of the management send fresh name or names standing next in order or merit on the panel under intimation to the Deputy Director and the Commission and the provisions of sub-rules (3) and (4) shall mutatis mutandis apply.

9. Procedure for appointment by promotion - (1) Where any vacancy is to be filled by promotion all teachers working in LT. Or C.T grade who possess the minimum qualifications and have put in at least 5 years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion to the Lecturer or L.T. Grade as the case may be without their having applied for the same.

Note-For the purpose of this sub-rule service rendered in any other recognised institution shall count for eligibility, unless interrupted by removal dismissal or reduction to a lower post.

(2) The criterion for promotion shall be seniority subject to the rejection of unfit.

(3) The Management shall prepare a list of teachers referred to in Sub-rule (1) and forward it to the Commission through the Inspector with a copy of seniority list, service records (including the character rolls and a statement in the proforma given in Appendix 'A' (4) Within three weeks of the receipt of the list from the Management under Sub-rule (3) the Inspector shall verify the facts and forward the list to the Commission.

(5) The Commission shall after calling for such additional information as it may consider necessary, intimate the name of selected candidate or candidates to the Inspector with a copy to the Manager of the Institution.

(6) Within ten days of the receipt of the intimation from the Commission under Sub-rule (5) the Inspector shall send the name of the selected candidate (s) to the Manager of the concerned institution and the provisions of sub-rules (3) and (4) of Rule 8 shall mutatis mutandis apply]

11. A bare perusal of Section 10 and 11 of U.P. Act No. 5 of 1982 and Rules would go to show that Management has been enjoined upon to determine and intimate vacancies to the Commission in the proforma given in Appendix 'A and number of vacancy existing or likely to fall vacant during the year of recruitment as well as number of vacancy to be reserved for candidate belongs to S.C./S.T. and other category of persons in accordance with the rules or orders issued by the Government in this behalf in regard to the educational institutions. Said statement of vacancies are to be sent within 15 September of the year of recruitment and District Inspector of Schools after verification of the same is enjoined upon to forward two copies of the same to the Deputy Director of Education. Deputy Director of Education thereafter is enjoined upon to forward the statement received by him under Sub-rule (2) alongwith a consolidated subject-wise statement of various categories of vacancies to the Commission. Where Commission has failed to notify the vacancy in the manner prescribed the Commission may require the Inspector to notify the vacancy and vacancies in the institution under his jurisdiction to the to Commission by such date as the Commission may specify. Rule 5 deals with notification of vacancy. Rule 6 provides the procedure for recruitment and thereafter it has been provided that in respect of the post of the Head of an institution the Commission shall also call for interview two senior-most-teachers of the institution whose names are forwarded by the management under Sub-rule (1) of Rule 4. Rule 7 deals with preparation of panel. Rule 8 deals with notification of selected candidate. Rule 9 deals with procedure for appointment by promotion. Said rule provides that where any vacancy is to be filled by promotion all teachers working in L.T. Or C.T. Grade, who possess the minimum qualifications and have put in at least five year continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion for the same Lecturer or LT. Grade as the case may be without their having applied for the same. The criterion for promotion shall be seniority subject to the rejection of unfit. In that event management is obliged to prepare the list of teachers referred to in Sub-rule (1) and forward it to the Commission through the Inspector with a copy of seniority list, service records including the character rolls and a statement in the proforma given in Appendix "A" thereafter Inspector has to verify the facts and forward the list to the Commission and Commission thereafter after calling for such additional information as it considers necessary, intimate the name of selected candidate or candidates and thereafter within ten days for the date of receipt of the intimation from the Commission to the Inspector shall send the name of the selected candidates to the Manager of the Institution.

12. Thereafter Chapter III of U.P. Act No. V of 1982 containing Section 12, 12A, 12B, 12C,13 14,15 and 15-A have been omitted by U.P. Act No. 15 of 1995 w.e.f. 28.12.1994 new set of Rules known as U.P. Secondary Education Services Commission Rules 1995 were brought in force. Relevant extract of 1995 Rules are being quoted below.

U.P. Secondary Education Services Commission Rules 1995:-

10. Source of recruitment-Recruitment to various categories of teachers shall be made from the following sourses:

(a) Principal of an Intermediate College or Headmaster of a High School - By Direct recruitment

(b)Teachers of lecturers grade

(i)50 percent by direct recruitment

(ii) 50 percent by promotion from amongst substantively appointed teachers of the trained graduates (LT) grade (C) Teachers of trained graduate(LT.) grade

(i) 50 percent by direct recruitment

(ii) 50 percent by promotion from amongst substantively appointed teachers of the trained graduates (C.T) grade Provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment;

Provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.

11. Determination and notification of vacancies- (1) The management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 of the Act and notify them through the Inspector to the Commission in the manner hereinafter provided.

(2) The statement of vacancies for each category of posts to be filled in by direct recruitment or by promotion, including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in separately in quadruplicate, in the pro forma given in Appendix "A" by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subjectwise in respect of the vacancies of lecturer grade and groupwise in respect of vacancies of trained graduates(LT) grade. The consolidated statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director.

Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:

Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1995, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by June 15,1995 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by June 30, 1995.

Explanation-For the purposes of this sub-rule the word 'groupwise' in respect to the trained graduates (LT) grade means in accordance with the following groups, namely.

(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Commission (4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 15 of the Act and notify them to the Commission in the manner and by the date referred on in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.

12. Procedure for direct recruitment-(1) The Commission shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled castes, Scheduled Tribes and Other Backward Classes of citizens in at lest two daily newspapers, having wide circulation in the State, and call for the applications for being considered for reservation in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High School, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wished to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.

(2) The Commission shall scrutinize the applications and prepare list for each category of posts on the basis quality point specified in Appendix B C or D as the case may be and having regard to the need for securing due representation of the candidates belonging to the Scheduled Caste, Scheduled Tribes and Other Backward Classes of citizens in respect of the posts of teacher in lecturers and trained graduates (LT.) grade, call for interview such candidate who have secured the maximum quality points in such manner that the number of candidates shall not exceed five times the number of vacancies.] (3) The Commission shall hold interview of the candidates and for each category of post prepare panel of those found most suitable for appointment in order to merit as disclosed by the marks obtained by them in the interview. The panel for the post of Principal or Headmaster shall be prepared institutionwise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whetheras for the posts in the lecturers and trained graduates (LT) grade, if shall be prepared subject wise and group wise respectively. If two or more candidates obtain equal marks in interview, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the interview as well as the quality points of two or more candidates are equal the name of the candidate who is older in age shall be placed higher, In the panel for the post of Principal or Headmaster, the number of names shall be three times of the number of the vacancy and for the post of teachers in the lecturers in the lecturers and trained graduates (LT) grade, it shall be larged (but not larger than twenty-five percent) then the number of vacancies.

Explanation-For the purposes of this sub-rule the word group wise means menas in accordance with the groups specified in the Explanation to Sub-rule (2) of rule 11.

(4) At the time of interview of candidates, for the post of teachers in lecturers and trained graduates (LT) grade the Commission shall, after showing the list of the institution which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.

(5) The Commission shall after preparing the panel in accordance with Sub-rule (3), allocate the institutions to the selected candidates in respect of the posts of teachers in lecturers and trained graduates (LT) grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with Sub-rule (4). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutions and there remains no vacancy in them. The commission may allocate any institution to him as it may deem fit.] (6) The commission shall forward the panel prepared under Sub-rule (3) alongwith the name of the institutions allocated to selected candidates in accordance with Sub-rule (5) to the Inspector with a copy thereof to the Deputy Director and also notify them on its notice board.

13. Intimation of names of selected candidates- (1) The Inspector shall, within ten days of the receipt of the panel and the allocation of institution under Rule 12,--

(i) notify it on the notice-board of his office.

(ii) Intimate the name of selected candidate to the Management of the institution, which has notified the vacancy, with the director, that, on authorization under resolution under resolution of the management, an order of appointment, in the pro forma given in Appendix 'E' be issued to the candidate by registered post within fifteen days of the receipt of intimation requiring him to joint duty within fifteen days of the receipt of the order or within such extended time, as may be allowed to him by the Management, and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.

(iii) Send an intimation to the candidate, referred to in Clause (ii) with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management.

(2) the Management shall comply with the directions, give under Sub-rule (1) and report compliance thereof to the Board through the Inspector.

(3) Where the candidate, referred to in Sub-rule (1), fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provisions of such-rule (1) and (2) shall mutatis mutaindis apply.

(4) The Joint Director shall monitor and ensure that the candidates selected by the Board join the institution in the specified time and for this purpose, he may issue such directions to the Inspector as he thinks proper."

"14. Procedure for recruitment by promotion'-(1) Where any vacancy is to be filled by promotion all teachers working in trained graduates (LT) grade or certificate of Training (C.T.) grade, if any, who possess the qualifications prescribed for the post and have completed five years continuous service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates (LT) grade, as the case may be, without their having applied for the same.

13. Even as per 1995 Rules, Rule 10 dealt with source of recruitment by providing that post of Principal of Intermediate College/Headmaster of High School is to be filled up by way of direct recruitment. Lecturers are to be appointed 50% of the post by way of direct recruitment and fifty percent by promotion from amongst substantively appointed teachers of LT. Grade. Similarly in respect of the L.T. Grade teacher, 50% of the post is to be filled up by way of direct recruitment and 50% by way of promotion from amongst substantively appointed teachers of C.T. Grade. It has also been provided for, that it in any year of recruitment suitable eligible candidates are not available for recruitment by way of promotion, the post may be filled up by way of direct recruitment. Rule 11 obligates the Management to determine the number of vacancies in accordance with Sub-section 1 of Section 10 of Act and to notify the same to Commission. Rule 12 deals with procedure for direct recruitment. Rule 13 deals with intimation of name of selected candidate. Rule 14 deals with promotion, by mentioned that where any vacancy is to be filled up by promotion all teachers working in LT. Grade or C.T. Grade if any who possess the qualification prescribed for the post and have completed five years continuous service as such on the first day of year of recruitment shall be considered for promotion to the Lecturers Grade or Trained Graduate (LT) grade, as the case may be without their having applied for the same.

14. Thereafter w.e.f 20.04.1998, by means of U.P. Act No.25 of 1998 Section 10, 11 and 12 has been substituted and further new set of Rules have been enforced namely U.P. Secondary Education Services Selection Board Rules 1998. Section 2(1) and Section 10,11 and 12 substituted by U.P. Act No. 25 of 1998 and Rules 10, 11,12 14 are being quoted below:-

U.P. Act No. V of 1982(Section 10,11 and 12 substituted by U.P. Act No. 25 of 1998) Section 2(1):

"(1) 'Year of recruitment' means a period of twelve months a period of twelve months commencing from July 1st of a calendar year.

Section 10: Procedure of selection by direct recruitment-(1) For the purpose of making appointment of a teacher by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizen in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994, and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed;

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under Sub-section (1).] Section 11:- Panel of candidates-(1) The Board shall, as soon as as may be after the vacancy is notified under Sub-section (1) of Section 10 hold examinations, where necessary and interviews of the candidates and prepare a panel of those found most suitable for appointment.

(2) The panel referred to in Sub-section (1) shall be forwarded by the Board to the officer or authority referred to in Sub-section (1) of Section 10 in such manner as may be prescribed.

(3) After the receipt of the panel under Sub-section (2) the officer or authority concerned shall, in the prescribed manner, intimate the Management of the Institution the names of the selected candidates in respect of the vacancies notified under Sub-section (1) of Section 10.

(4) The management shall, within a period of one month from the date of receipt of such intimation, issue appointment letter to such selected candidate.

(5) Where such selected candidate fails to join the post in such Institution within the time allowed in the appointment letter or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the officer or authority concerned may, on the request of the Management, intimate in the prescribed manner, fresh name or names from the panel forwarded by the Board under Sub-section (2).

Section 12:- Procedure of Selection by promotion-

(1) For each region, there shall be a Selection Committee, for making selection of candidates for promotion to the post of a teacher comprising-

(i) Regional Joint Director of Eduction-Chairman

(ii) Senior-most Principal of Government Inter College in the region -- Member

(iii) Concerned District Inspector of Schools - Member Secretary (2) The procedure of selection of candidates for promotion to the post of a teacher shall be such as may be prescribed.

U.P. Secondary Education Services Selection Board Rules 1998

10. Source of recruitment- Recruitment to various categories of teachers:

(a) Principal of an Intermediate College or Headmaster of a High School - By Direct recruitment

(b)Teachers of lecturers grade

(i)50 percent by direct recruitment

(iii)50 percent by promotion from amongst substantively appointed teachers of the trained graduates grade (C) Teachers of trained graduate grade Promotion from amongst the substantive appointed teachers of Certificate of Teaching grade;

Provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment;

Provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.

11. Determination and notification of vacancies-(1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with Sub-section (1) of Section 10 and notify the vacancies through the Inspector, to the Board in the manner hereinafter provided.

(2) (a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the pro forma given in Appendix "A" by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Board by July 31 with a copy thereof to the Joint Director.

Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:

Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20,1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this Sub-rule to the Board by July 25,1998.

Explanation-For the purposes of this sub-rule the word 'groupwise' in respect to the trained graduates grade means in accordance with the following groups, namely.

(b) With regard to the post of Principal or Headmaster, the Management shall also forward the names of two senior-most teachers, alongwith copies of their service records (including character rolls) and such other records or particulars as the Board may require, from time to time.

Explanation-For the purpose of this sub-rule " senior most teacher" means the senior-most teacher in the post of the highest grade in the institution, irrespective of total service put in the institution.

(3) If, after the vacancies have been notified under Sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence , notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Board.

(4). Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in Sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with Sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred on in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.

12. Procedure for direct recruitment- (1) The Board shall , in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled castes, Scheduled Tribes and Other Backward Classes of citizens in at lest two daily newspapers, having wide circulation in the State, and call for the applications for being considered for reservation in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High Scholl, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.

(2) The Board shall scrutinize the applications and in respect of the post of teacher in lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of o9ne paper of general aptitude test of two hours duration based ion the subject. The centres for conducting written examination shall be fixed in district head quarters only and the invigilators shall be paid honorarium at such rate as, the Board may like to fix.

(3) The Board shall evaluate the answer sheets through examiner to be appointed by the Board or through Computer and the examiner shall be paid honorarium at the rate to be fixed by the Board.

(4) The Board shall prepare lists for each category of posts on the basis of quality points specified in appendix 'B' or Appendix 'C\ as the case may be, marks in written examination and marks for experience as follows:

2. 30m per cent marks on the basis of quality points;

3. 30m per cent marks on the basis of of written examination; and

4. 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be given for each year of such experience with maximum of 16 marks.

Notes: - (1) The teaching experience for this purpose shall be counted only for the recognised High School/Intermediate College(s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Head Master and counter signed by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be, with full name of the countersigning authority;

(2) Any wrong information submitted in this regard shall make the applications of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.

(5) The Board shall, in respect to the selection for the post of Head master and Principal, allot the marks in the following manner:

(i) 60 per cent marks on the basis of quality point specified in Appendix 'D'

(ii) 20 per cent marks for having experience more than the required experience. 1 mark for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks; and

(iii) 10 per cent marks for having doctorate degree.

Note- For the purpose of calculating experience, the service rendered as Head Master of Junior High School or as Assistant teacher of a High School/Intermediate College shall be counted in the case of selection of head Master and for selection of Principal, the service rendered as Head Master of a High School or as a lecturer shall only be counted. The provision of sub rule (4) of Rue 12 regarding the certificate of experience shall mutatis mutandis apply.

(6) The Board, having regard to the need fort securing the representation of the candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizen in respect of the post of teacher in lecturers grade and trained graduates grade, call for interview such candidates who have secured the maximum marks under Sub-rule (4) above/and for the post of Principal/Head Master, call for interview such candidates who have secured maximum marks under Sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies:

Provided that in respect of the post of principal or Head Master of an institution the Board shall also in addition call, for interview two senior most teachers of the institution whose names are forwarded by the Management through Inspector under clause (b) of Sub-rule (2) of Rule 11.

(7) The Board shall hold interview of the candidates and 10 per cent marks shall be allotted for interview. The marks obtained in the written test and the quality point by the eligible candidates shall not be disclosed to the members of the Interview Board:

Provided further that in the interview, ten per cent marks shall be divided in the following manner:

2. 4 per cent marks on the basis of subject/general knowledge;

3. 3 per cent marks on the basis of personality; and 4.3 per cent marks on the basis of ability and experience.

(8) The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under Sub-clause (4) or Sub-clause (5) above, as the case may be with the marks obtained in the interview. The panel for the post of Principal or Head Master shall be prepared institution wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for posts in the lecturers and trained graduates grader, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks, the name of candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of candidate who is older in age shall be placed higher. In the panel for the post of Principal or Head Master, the number of names shall be three times of the number of vacancy and for the post of teachers in the lacquerers and trained graduates grade, it shall be larger (but nor larger than twenty five per cent) then the number of vacancies.

Explanation: For the purpose of this sub-rule the word 'group-wise' means in accordance with the groups specified in the Explanation to Sub-rule (2) of Rule 11.

(9) At the time of interview of candidates, for the post of teachers in lecturers and trained graduates grade the Board shall, after showing the list of the institutions which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.

(10) The Board shall after preparing the panel in accordance with Sub-rule (8), allocate the institutions to the selected candidates in respect of the posts of teachers in lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub-rule(9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated any institution to him as it may deem fit.

(11) The Board shall forward the panel prepared under Sub-rule (8) alongwith the name of the institutions allocated to selected candidates in accordance with Sub-rule (10) to the Inspector with a copy thereof to the joint Director and also notify them on its notice-board.

13- Intimation of names of selected candidates- (1) The Inspector shall, within ten days of the receipt of the panel and the allocation of institution under Rule 12,--

(iv) notify it on the notice-board of his office.

(v) Intimate the name of selected candidate to the Management of the institution, which has notified the vacancy, with the director, that, on authorization under resolution under resolution of the management, an order of appointment, in the pro forma given in Appendix 'E' be issued to the candidate by registered post within fifteen days of the receipt of intimation requiring him to joint duty within fifteen days of the receipt of the order or within such extended time, as may be allowed to him by the Management, and also intimating him that on his failure to join within the specified time his appointment will be liable to be cancelled.

vi) Send an intimation to the candidate, referred to in clause (ii) with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management.

(2) the Management shall comply with the directions, give under Sub-rule (1) and report compliance thereof to the Board through the Inspector.

(3) Where the candidate, referred to in Sub-rule (1), fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provisions of such-rule (1) and (2) shall mutatis mutaindis apply.

(4) The Joint Director shall monitor and ensure that the candidates selected by the Board join the institution in the specified time and for this purpose, he may issue such directions to the Inspector as he thinks proper."

"14. Procedure for recruitment by promotion- (1) Where any vacancy is to be filled by promotion all teachers working in trained graduates grade or certificate of Training grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for V promotion to the lecturers grade or the trained graduates grade, as the case may be, without their having applied for the same.

15. Section 2(1) of the Act defines year of recruitment, as meaning a period of twelve months' commencing from July 1st of calendar year. Section 10 of the Act obligates the Management to determine number of vacancies existing or likely to fall vacant, during the year of recruitment and notify the vacancies to the Board. Section 10 (2) provides that procedure of selection of candidates for direct recruitment, shall be such as may be prescribed. Proviso to the said section, talks of wide publicity to invite talented persons. Rule 4 provides that a candidate for direct recruitment must have attained age of 21 years on 1st day of July of calendar year when vacancy is advertised. Rule 5 deals with academic qualifications. Rule 10 deals with source of recruitment and as far as post of Lecturers and LT grade teachers are concerned 50% of the vacancies, in respective grade is to be filled up by way of promotion and 50% by way of direct recruitment. Said Section further provides that if in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the post may be filled up by direct recruitment. Rule 11 deals with determination of vacancies, in terms of Section 10(1) of the Act. Rule 11(2) (a), talks of statement of vacancies, to be filled by direct recruitment, including vacancies that are likely to arise on account of retirement on the last day of year of recruitment to be sent by Inspector by July 15 of the year of recruitment and thereafter by the Inspector to the Board by 31st July. Rule 11(4), in the event of failure on the part of Management, empowers the District Inspector of Schools, to determine and notify the vacancies, and this action of District Inspector of Schools is to be treated as action on behalf of Management. Rule 12 deals with procedure for direct recruitment. Rule 13 deals with intimation of name of selected candidates Rule 14 deals with procedure for promotion. Rule 16 deals with ad-hoc promotion.

16. At this place relevant provision of U.P. Act No. 4 of 1994 and the Government Orders which cover the field are also been looked into and quoted below:

U.P Act No. 4 of 1994: Section 2(c)- "public services and posts" means the services and posts in connection with the affairs of the State and includes services and posts in

(i) a local authority;

(ii) a co-operative society as defined in clause (f) of Section 2 of the Uttar pradesh Co-operative Societies Act 1965 in which not less than fifty-one percent of the share capital of the society is held by the State Government;

(iii) a Board or a Corporation or a statutory body established by or under a Central or Uttar Pradesh Act which is owned and controlled by the State Government or a Government company as defined in Section 617 of the Companies Act 1956 in which not less than fifty one percent of the paid -up share capital is held by the State Government;

(iv) an educational institution owned and controlled by the State Government or which receives grants in aid from the State Government including a university established by or under a Uttar Pradesh Act except an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution.

(v) Respect of which reservation was applicable by Government orders on the date of the commencement of this Act and which are not covered under Sub-clauses (i) to (iv).

Section 3(1)- Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classess- (1) In public services and posts, there shall be reserved at the stage of direct recruitment the following percentages of valencies 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 Caste-Twenty one percent

(b) in the case of Scheduled Tribes two percentage (C) in the case of the other Backward Classes of citizens Twenty seven percent Provided that the reservation under Clause (c)shall not apply to the category of other backward classes of citizens specified in Scheduled 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 to the Scheduled Tribes are not available to fill the vacancy reserved for them such vacancy shall be filed by persons belonging to the Scheduled Caste.

(4) Where, due to non-availability of suitable candidates any of the vacancies served 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 percent 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 person 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 one the date of commencement of this Act, reservation was in force under Governments Orders for appointment to posts to be filled by promotion such Government Orders shall continue to be applicable till they are modified.

Governments Orders:

Government Order dated 12th July 1978 izs"kd] Jh vkRe izdk"k] mi lfpo] mRrj izns"k 'kklu A lsok esa] f'k{kk funs'kd] mRrj izns'k [email protected][ku f'k{kk 7 vuqHkkx y[ku% fnukad 12 tqykbZ] 1978 fo"k;%& ekU;rk izkIr v'kkldh; lgk;drk izkIr m-ek- fo|ky;ksa esa fu;qfDr gsrq vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks vkj{k.k A egksn;] eq>s ;g dgus dk funs"k gqvk gS fd izns'k esa ljdkjh mPprj ek/;fed fo|ky;ksa esa fu;qfDr gsrq vHkh rd vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks dksbZ vkj{k.k izkIr ugha gS A v'kkldh; lgk;rk izkIr m- ek- fo|ky;ksa esa Hkh vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks vkj{k.k iznku djus dk i'u dkQh le; ls 'kklu ds fopkjk/khu Fkk A vr% 'kklu us bl ekeys esa lE;d fopkjksijkUr ;g fu.kZ; fy;k gS fd izns'k ds lHkh v'kkldh; m-ek- fo|ky;ksa dks] tks fd bl le; vuqnku lwph ij gSa ;k tks Hkfo";

esa vuqnku lwph ij yk;s tk;sa] jkT; ljdkj }kjk ns; vuqnku ds tkjh j[ks tkus vFkok muds vuqnku lwph ij cus jgus dh ,d vfuok;Z 'krZ ;g jgsxh fd os vius ;gkW fu;qfDr;ksa esa vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa rFkk fiNM+s oxksZ ds lnL;ksa dh layXu fu;ekoyh ds vuqlkj vj{k.k iznku djsaxs A 2 vr% eq>s vkils ;g vuqjks/k djuk gS fd vki layxu fu;ekoyh dh ,d izfr lHkh lgk;rk izkIr m- ek- fo|ky;ksa dks Hkstrs gq;s mUgsa 'kklu ds mi;qZDr fu.kZ; ls voxr djk nsa vkSj mUgs ;g Li"V dj nsa fd mUgs bl fu;ekoyh dk ikyu djuk vfuok;Z gksxk vU;Fkk muds fo:) vko";d dk;Zokgh dh tk;sxh A lgk;rk izkIr v'kkldh;] lgk;rk izkIr m- ek- fo|ky;ksa esa fu;qfDr gsrq vuqlwfpr tkfr;ksa] tutkfr;ksa ,oa fiNM+s oxksZ dks vkj{k.k iznku djus gsrq fu;ekoyh 1 izR;sd v'kkldh;

lgk;rk izkIr m-ek- fo|ky; ftls vkxs fo|ky; dgk x;k gS esa v/;kidksa ftlds vUrxZr laLFkk dk iz/kku lfEefyr ugha gS ds izR;sd ine ds inksa ij fuEukafdr oxksZ ds ,sls O;fDr;ksa ds fy;s tks fd ml in gsrq U;wure fu/kkZfjr ;ksX;rk j[krs gksa] vkjf{kr gksxk tks fd izR;sd oxZ ds lEeq[k vafdr gS %& vuqlwfpr tkfr

---------18 izfr'kr vuwlqfpr tutkfr

---------2 izfr'kr fiNM+s oxZ

---------15 izfr'kr ftudh lwph ifjf'k"V ^^d** esa nh gqbZ gS ds fy;s izrcU/k ;g gS fd fdlh Hkh ine ds inksa esa fdlh Hkh oxZ ds vkjf{kr inksa dh x.kuk gsrq vk/ks ls de Hkkx NksM+ fn;k tk;sxk vkSj vk/kk ;k vk/kk ls vf/kd Hkkx dks ,d fxuk tk;sxk A 2 ;fn fdlh fo|ky;

esa] fdlh le; esa] fdlh ine ds v/;kidks ds inksa ij mijksDr oxksZ ds v/;kidksa dh la[;k mu oxksZ ds fy;s fu/kkZfjr izfr'kr ls de gksxh rks tc rd ml oxZ ds fy;s mDr fu/kkZfjr dksVk iw.kZ u gks tk;] iguh fjfDr rFkk izR;sd ,dkUrj fjfDr;kW

------------------- pkgs og inksUufr ls Hkjh tk; vFkok lh/kh HkrhZ ls vkjf{kr le>h tk;sxh A 3 fdlh oxZ fo'ks"k ds U;wure ;ksX;rk/kkjh vH;fFkZ;ksa dh miyC/krk ds v/khu jgrs gq;s]&& d tgkW mi;qZDr oxksZ esa ls fdlh ,d oxZ dk fu/kkfjr dksVk viw.kZ gks] ogkW vkjf{kr inksa dks mlh oxZ fo'ks"k ds vH;kfFkZ;ksa ls Hkjk tk;sxk] vkSj [k tgkW mi;qZDr oxksZ esa ls ,d ls vf/kd oxksZ dk fu/kkZfjr dksVk viw.kZ gks] ogkW vkjf{kr inksa dk ml izR;sd oxZ ds vH;kfFkZ;ksa ls mlh e esa Hkjk tk;sxk A bl e esa bu oxkZ dk mYys[k fu;e 1 fn;k gqvk gS A ;g izf;k rc rd nksgjkbZ tkrh jgsxh tc rd fd lHkh vkjf{kr in Hkj u tk;sa A 4 ;fn mi;qZDr oxksZ esa ls fdlh oxZ dk dksVk iw.kZ u gqvk gks] vkSj ml oxZ dk lEcfU/kr in gsrq U;wure ;ksX;rk/kkjh dksbZ vH;FkhZ Hkh miyC/k u gks rks ,slh n'kk esa vkjf{kr in dh fjfDr ml oxZ ds ckn okys ,sls oxZ ds vH;FkhZ ls] ftldk dksVk viw.kZ gks] Hkjh tk;sxh A 5 tgkW mi;ZqDr oxksZ esa ls dksbZ Hkh ,slk oxZ u gks ftldk dksVk viw.kZ gks] vFkok tgkW dksbZ ,slk oxZ gks ftldk dksVk viw.kZ gks fdUrq ml oxZ dks dksbZ fu/kkZfjr ;ksX;rk/kkjh vH;FkhZ miyC/k u gks] rks ml n'kk esa og fjfDr lkekU; vH;fFkZ;ksa ls Hkjh tk;sxh A 6 tgkW lh/kh HkrhZ ls Hkjk tkus okyk dksbZ in buesa ls fdlh Hkh oxZ ds fy;s vkjf{kr gks] rks ml in ds foKkiu esa bl ckr dk vo';eso mYys[k fd;k tk;sxk fd og in ml oxZ ds fy;s vkjf{kr gS A 7 mijksDr O;oLFk fyfidh; rFkk prqFkZ Js.kh deZpkfj;ksa ds lEcU/k esa Hkh ykxw gksxh A 8 ;s fu;e mu inksa ds lEcU/k esa ykxw ugha gksaxs ftu ij mRrj izns'k gkbZLdwy rFkk baVj dkyst vkjf{kr lewg v/;kid v/;kns'k] 1978 ds vUrxZr vkjf{kr lewg v/;kidksa dks vkesyu fd;k tk;sxk A ifjf'k"B ^^d** 'kklukns"k la-&1314 @ NCchl&&781&1958] fnukad 17 flrEcj] 1958 ds vuqlkj mRrj izns'k esa fiNM+h tkfr;ksa dh lwph A fgUnq 1&vghj 20&dgkj 2&vj[k 21&dSoV ;k eYykg 3&catk 22&fdlku 4&c<+Z 23&dksgjh 5&ckjh 24&dksjhvkxjk] esjB vkSj :gsy[k.M fMohtu esa 6&cSjkxh 25&dqEgkj 7&Hkj 26&dqehZ 8&HkksfV;k 27&yks/k 9&HkwthZ ;k HkM+Hkwtk 28&yksgkj 10&fcUn 29&yksfu;k 11&Nhih 30&ekyh 12&nthZ 31&efugkj 13&/khoj 32&eqjko 14&xM+fj;k 33&ukbZ 15&xkslkbZ 34&uk;d 16&xwtj 35&lksukj 17&gyokbZ 36&rekyh 19&dkNh 37&rsyh eqfLye 1&HkfB;kjk 12&fdlku 2&c<+bZ 13&efugkj 3&fpdokdLlkt 14&fHkjklh 4&nthZ 15&ekSfeuvalkj 5&Mqkyh 16&eqfLyedk;LFk 6&Qdhj 17&un~nkQ/kqfu;k 7&xn~nh 18&uDdky 8&gTtkeukbZ 19&uV 9&>hdk 20&jaxjst 10&dqlxj 21&Lohij 11&dqatM+k uksV%& dqek;w fMohtu esa ekjNk] uk;d] fxjh vkSj fiNM+s eqlyeku Hkh fiNM+h tkfr;ksa gh ekus tk;ssaxs A mRrj izns'k ljdkj f'k{kk vuqHkkx&7 la[;k% [email protected]&7&[email protected] y[ku] fnukad vDVwcj 25]1982 vf/klwpuk mRrj izns'k ek/;fed f'k{kk lsok vk;ksx vkSj p;u cksMZ vf/kfu;e] 1982 mRrj izns'k vf/kfu;e la[;k 5 lu~ 1982 dh /kkjk 3 ds v/khu 'kfDr dk iz;ksx djds jkT;iky] fnukad 1 uoEcj 1982 ls mRrj izns'k ek/;fed f'k{kk lsok vk;ksx** LFkkfir djrs gSa vkSj funs'k nsrs gS fd mDr vk;ksx dk eq[;ky; bykgkckn essa gksxk A 2& jkT;iky] vxzrj] mDr vf/kfu;e dh /kkjk 4 ds v/khu 'kfDr dk iz;ksx djds uEufyf[kr O;fDr;ksa dks] dk;Z Hkkj xzg.k djus ds fnukad ls] mDr vk;ksx dk v/;{k vkSj lnL;

fu;qDr djrs gS %& 1&Jh ujksRre izlkn f=ikBh v/;{k 2&Jh tewuk izzlkn flag lnL;

/kkjk 4 dh mi/kkjk2 ds [k.M d ds v/khu Government Order Dated 26th April 1983 vkj{k.k kesa fu;qfDr lEcU/kh uhfr la- [email protected] 15&7&1983&12 [email protected] fo"k;&7 vuqHkkx y[ku] fnukad 26 viSzy] 1983 fo"k;%& v'kkldh; lgk;rk izkIr m- ek-

fo|ky;ksa gsrq vuqlwfpr tkfr;ksa @ tutkfr;ksa ,oa fiNMs+ oxksZ dks vkj{k.k ! egksn;] ekU;rk izkIr lkgkf;~;d mPpre ek/;fed fo|ky;ksa esa fofHkUu inksa esa dh tkus okyh fu;qfDr;ksa esa vuqlwfpr tkfr;ksa] vuqlwfpr tutkfr;ksa ,oa fiNM+s oxksZ ds vH;fFkZ;ksa ds fy;s fd;s tkus okys vkj{k.k ls lEcfU/kr 'kklukns'k la[;k [email protected] @ 15&7&17 &&1 fnukad 12&7&78 ds vue esa eq>s ;g dgus dk funsZ'k gqvk gS fd mDr 'kklukns'kksa ls layXu funsZ'kksa esa vU; okrksa ds lkFk ;g bafxr fd;k x;k Fkk fd vkjf{kr oxZ ds vH;fFkZ;ksa dh fu;qFdr ds izlax esa ,sls vH;fFkZ;ksa ds in gsrq fu/kkZj.k ;ksX;rk dk orZeku lsok Hkkx i;kZIr le>k tk;sxk vkSj ;fn og izfrcU/k iwjk gS rks lEcfU/kr vH;FkhZ dks iz'uxr in esa vkjf{kr dksVk ds in ij fu;qDr fd;k tk ldrk gS ! ekeys esa iqufopkkjksijkUr 'kklu us ;g fu.kZ; fy;k gS fd vkjf{kr dksVk ds inksa esa fu;qfDr gsrq v)Z VH;fFkZ;ksa }kjk pkgs ,slh fu;qfDr lh/kh HkrhZ }kjk dh tk jgh gks vFkok izksUufr] }kjk in gsrq fu/kkZj.k U;wure ;ksX;rk dk vo/kkj.k ekax i;kZir u le>k tksxk cfYd lkFk gh ,sls vH;FhZ dk p;u djus okys izkf/[email protected] fudk; ds n`f"Vdks.k ls in ls fu;qfDr gsrq mi;qZDr gksuk Hkh vko';d gksxk ! 2& tgkW rd izksUufr;ksa }kjk dh tkus okyh fu;qfDr;ksa dk lEcU/k gS 'kklu us ;g fu.kZ; fy;k gS fd ,slh fu;qfDr;ksa esa fiNM+s oxksZ ds vH;fFkZ;ksa ds fy, dksbZ vkj{k.k u gksxk A 3& eq>s ;g dguk gS fd 'kklukns'k la- [email protected] 15&7&12 [email protected] fnukad 12 tqykbZ] 1983 esa layXu funsZ'k iwoZ izLrjksa esa mfYyf[kr vkos"kksa dh lhek rd la'kksf/kr le>s tk;asxs A 4& i;k leLr laLFkk/kkfj;ksa dks 'kklu ds mi;qZDr vkns'kksa us ;Fkk'kh?kz voxr djkus dk d"V djsa vkSj ;g lqfuf"pr djsa fd vkj{k.k lEcU/kh vkns'kksa dk ifjikyu muds }kjk rn~uqlkj fd;k tk; A i;k tkjh fd;s x;s vius funs'kkas dh 50 izfr;ka 'kklu dks Hkh 'kh?kz Hkstus dk d"V djsa A Hkonh;] jke yky 'kekZ mi lfpo e la[;k&1 la[;k 22 @ 25 @ 82&dkfeZd &2 Government Order Dated 7th February 1990 izs"kd% Jh jkt dqekj HkkxZo eq[; lfpo] mRrj izns'k 'kklu ! lsok esa] 1& leLr izeq[k lfpo @ lfpo @ fo'ks"k lfpo] mRrj izns'k 'kklu ! 2& leLr foHkkxk/;{k ,oa izeq[k dk;kZy;k/;{k] mRrj izns'k ! 3& leLr e.Myk;qDr @ ftykf/kdkjh] mRrj izns'k ! y[ku] fnukad 7 Qjojh] 1990 ! egksn;] eq>s ;g dgus dk funs'k gqvk gS fd mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 31 tuojh] 1989 esa ;g vkns'k izlkfjr fd;s x;s Fk fd vuqlwfpr tkfr @ tutkfr ds mi;qDr vH;FkhZ dh vuqiyC/krk dh n'kk esa vkjf{kr fjfDr;ksa dks vU; oxZ ds vH;fFkZ;ksa ls u Hkjk tk;s rFkk dsoy iz'kklfud vis{kkvksa dh iwfrZ ds fy;s ;fn vifjgk;Z gks rks ekuuh; eq[; ea=h th dk iwokZuqeksnu izkIr djus ds mijkUr gh ,slk fd;k tk ldrk gS A 2& bl lEcU/k esa ,sls izdj.k lkeus vk;s gSa ftuesa ,sls izLrko ekuuh; eq[; eU=h th ds vuqeksnukFkZ izLrrqr fd;s x;s tks vifjgk;Z ugha Fks vFkok vkjf{kr fjfDr ds fo:) lkekU; vH;fFkZ;ksa ls O;oLFkk fd;s tksus dk izLrko fd;k x;k Fkk A ;g fLFkfr 'kklu dh ea"kk ds vuqdwy ugha gS A bl lEcU/k esa 'kklu us leqfpr fopkjksijkUr fuEukafdr fu.kZ; fy;s gSa %& 1& vuqlwfpr tkfr @ tutkfr ds mi;qDr vH;FkhZ miyC/k u gksus dh n'kk esa dsoy furkUr vifjgk;Z ekeyksa esa gh dke pykm O;oLFkk ds :i esa foRrh; o"kZ ds fy;s dsoy lhukiUu @ vLFkkbZ O;oLFkk ds fy;s ekuuh; eq[; ea=h th ds iwokZuqeksnu gsrq izLrko izLrqr fd;s tk ldrs gSa A 2& lkekU; p;u ls iwoZ gh vkjf{kr dksVs dh fjfDr;ksa ds fo:) ik= vH;fFkZ;ksa dh vuqiyC/krk ds dkj.k mUgsa lkekU; vHk;fFkZ;ksa ls Hkjus dh vifjgk;Zrk Li"V gks rksrh gS vr% mls izLrko esa vafdr fd;k tk; A fo'ks"k ifjfLFkfr;ksa esa p;uksijkUr laKku esa vkus okys ekeyksa esa ekuuh; eq[; ea=h th dk iwokZuqeksnu foHkkxh;

ea=h ds vuqeksnu ds i'pkr rRle; izkIr fd;k tk;] ijUrq nksuksa gh voljksa ij in fo'ks"k ij lkekU; p;u gsrq fu/kkZfjr izf;k ds vuqlkj gh p;u fd;k tk; A 3& i;k mDr fLFkfr ls vius v/khuLFk leLr lEcfU/kr vf/kdkfj;ksa dks voxr djkus dk d"V djsa A Hkonh;

jkt dqekj HkkxZo eq[; lfpo la[;k 22 @ 25 @ 82 @ [email protected] dkfeZd&2 rn~fnukad izfrfyfi fuEufyf[kr dks lwpukFkZ vko';d dk;Zokgh gsrq izsf"kr %& 1& lfpoky; ds leLr vuqHkkx A 2& jkT;iky ds lfpo A 3& lfpo] yksd lsok vk;ksx] mRrj izns'k] bykgkckn A 4& lfpo] mRrj izns'k v/khuLFk lsok p;u cksMZ] y[ku A 5& eq[; dk;kZy; fujh{kd] mRrj izns'k] bykgkckn A 6& fucU/kd] mPp U;k;ky;] mRrj izns'k] bykgkckn A 7& leLr ftyk gfjtu ,oa lekt dY;k.k vf/kdkjh] mRrj izns'k A 8& lfpo] fo/kku [email protected] fo/kku ifj"kn] mRrj izns'k A vkKk ls] uhjk ;kno] Government Order dated 18-12-1990 dkfeZd vuqHkkx&2] 'kklukns'k la[;k 22 @ 58 @ 82&dkfeZd&[email protected]] fnukad 18 fnlacj] 1990 fo"k;% jkT;k/khu vkfn lsokvksa ds inksUufr dksVs esa vuqlwfpr tkfr @ tutkfr ds vH;fFkZ;ksa dh fcuk Hkjh gq, vkjf{kr fjfDr;ksa dh iwfrZ A 'kklu ds laKku ea ;g vk;k gS fd iks"kd laoxZ esa vuqlwfpr tkfr @ tutkfr ds vgZ mi;qDr vH;fFkZ;ksa dh vuqiyC/krk ds dkj.k ;k rks ,sls inksa dks yEch vof/k rd [kkyh j[kuk iM+rk gS vFkok mUgsa vLFkbZ @ LFkukiUu :i ls lkekU; oxZ ds vH;fFkZ;ksa ls Hkjs tkus ds izLrko izkIr gksrs gS A Qyr% vkjf{kr inksUufr dksVs ds inksa ij vkj{k.k dksVs dh iwfrZ ugha gks ikrh gS rFkk vkjf{kr oxZ ds vH;FkhZ mPp inksa ij lsok ds volj ikus ls oafpr jg tkrs gS A vkjf{kr inksa dks izkFkfedrk ds vk/kkj ij vkjf{kr oxZ ds vH;fFkZ;ksaa fu.kZ; fy;s x;s gSa %& 1&ftu lsokvksa esa lh/kh HkrhZ rFkk inksUufr nksuksa dksVk fu/kkZfjr gS muesa iks"kd lanHkZ esa vuqlwfpr tkfr @ tutkfr ds vgZ vH;fFkZ;ksa ds inksaUufr gsrq vuqiyC/krk ij mDr fjfDr;kW vLFkkbZ :i ls lh/kh HkrhZ ds dksVs esa ifjofrZr dh tk ldsaxh A 2& iks"kd laoxZ esa vuqlwfpr tkfr @ tutkfr ds vgZ vH;fFkZ;ksa ds miyC/k gksus ds ckn lh/kh HkrhZ dksVs esa vkjf{kr fjfDr;ksa dks iqu% inksUufr dksVs esa LFkkukUrfjr fd;k tk;s rkfd HkrhZ ds nksuksa L=ksrksa esa larqyu cuk jgs A 3& lh/kh HkrhZ ds inksa ij vkxkeh p;u vk;ksftr djus gsrq rn~uqlkj vf/k;k;u Hksts tk;sa] vkSj ;fn iwoZ esa vf/k;k;u Hksts tk pqds gksa rks muesa okafNr la'kks/ku dj fn;s tk;sa A 4& mDr vkns'k rkRdkfyd izHkko ls ykxw gksaxs vkSj bl lanHkZ esa iwoZ izlkfjr leLr vkns'k bl lhek rd la'kksf/kr le>s tk;sa A 2& i;k mihjksDrkuqlkj dk;Zokgh lqfuf'pr djus gsrq vius v/khu leLr fu;qfDr izkf/kdkfj;ksa dks funsZf'kZr djus dk d"V djsa A 3& ;g vkns'k rkRdkfyd izHkko ls ykxw gksaxs A

17. After all these provisions have been noticed, the first question is to be seen is as to whether reservation policy is applicable in case where the post is to be filled up by way of promotion, when there is no mention of providing reservation either under the U.P. Act No. V of 1982 or Rules framed thereunder in respect of promotion. Both under the un-amended and amended U.P. Act No. V of 1982 specific mention has been made in respect of providing of reservation in the matter of direct recruitment but there is no mention of reservation in the matter of promotion and in this background relevant provisions are being looked into. State Government as far as back on 12.07.1978 had issued an order providing reservation of post for S.C/S.T. And Other Back ward Classes of citizens where the vacancies were to be filled up by way of promotion. Said Government Order contained condition No. 5 wherein it has been mentioned that in case in aforementioned relevant year of recruitment no one was available in the next lower grade then in that event said post could be filled by way of direct recruitment. Validity of aforementioned Government Order had been considered by a Division Bench of this Court in the case of Krishna Pal Singh v. Government of U.P. and Ors. reported in 1981 UPLBEC 521 wherein this Court took the view that said Government Order has statutory force and same will have to be effective notwithstanding any regulation framed by the Board. Division Bench of this Court while considering the provision of the Chapter-II Regulation 6 of U.P. Intermediate Education Act 1921 alongwith the Government Order dated 12.07.1978 concluded that if the vacancy occurs in the L.T. Grade then that should be filled up by way of promotion from member of Scheduled Castes, Scheduled Tribes or Backward Classes if he posses the minimum requisite qualifications. Subsequent to the said Government Order another Government Order dated 26.04.1983 has been issued and the same has modified the earlier Government Order dated 12.07.1978 and promotion benefit has been withdrawn qua "OBC" category candidates. State Government as policy decision took the view that in the matter of promotion there would be no reservation qua Other Backward Class category candidate. Thereafter Government Order dated 31.01.1989 had been issued mentioning therein, that in case no one from SC/ST category is available then the said post shall not be filled from candidate of other categories and only when there is administrative requirement and same cannot be awaited, then after taking concurrence from Hon'ble Chief Minister, candidate from other category could be appointed. This Government Order has been further clarified in Government Order dated 07.02.1990. In Government Order dated 07.02.1990 it has been mentioned that where candidate from Scheduled Caste/Scheduled Tribe category is not available then in that event said post shall not be filled up from other category candidate and only when there would be administrative exigency then in that event same may be filled up from other category of candidates after obtaining prior permission from the Chief Minister and it was also mentioned therein it would be treated as merely stop gap arrangement. It was also mentioned that after permission was accorded by the Chief Minister then same can be filled by following procedure provided for. Subsequent to this Government Order dated 18.12.1990 has been issued and therein it has been mentioned that State Government has acquired knowledge that in the feeder cadre, on account of non-availability of Scheduled Caste/Scheduled Tribes candidates posts are lying vacant for long period and further resolutions are being received to fill up the said post on temporary/stop gap basis from amongst General category candidates and net effect of the same is that posts reserved are not filled up from amongst reserve category candidate. In this background State Government took decision providing therein that where quota both by way of direct recruitment and promotion has been provided for and there is no candidate available in feeder Cadre from amongst Scheduled Caste/Scheduled Tribes category then in that event said vacancies can be converted on temporary basis to be filled by way of direct recruitment and the moment in the feeder Cadre Scheduled Caste/Scheduled Tribes category candidates are available then in that event the post reserved under direct recruitment quota would be transferred to promotional quota so that balance is there in between direct recruitment quota and promotion quota. It has been mentioned in the Government Order dated 18.12.1990 that earlier Government Order issued in this respect shall stand cancelled. Said Government Order dated 12.07.1978 in its modified form dated 18.12.1990 still holds the field and till date said Government Order has not been rescinded, modified or revoked. In the case of Indra Sawhney and Ors. v. Union of India and Ors. reported in 1992 Supp. (3) SCC 217, reservation, in the matter of promotion was disapproved, however it was mentioned that in case there are existing provision giving benefit of reservation in the matter of promotion then same be permitted to be continued for a period of five years. State Government came out with U.P. Act No. 4 of 1994 with a view to provide reservation in public service and post in favour of persons belonging to SC/ST/ and OBC category and therein Sub-section (7) of Section 3 had been inserted by mentioning that Government Orders which provided for reservation in promotion as on the date of commencement of the Act, would continue to be applicable till they are modified or revoked. Constitutional amendment was also made by inserting Clause (4-A) in Article 16 of Constitution w.e.f. 17.06.1995 which enjoined State Government to make provision for reservations in favour of SC/ST category candidate.

18. Validity of Section 3(7) of U.P. Act No. 4 of 1994 has been subject matter of challenge before Division Bench of this court, in the case of Sudhir Kumar Anand v. U.P.State Electricity Board. reported in 2001 (1) UPLBEC 708 and this court has upheld validity of the same. Relevant extract of the said judgment is being quoted below:

"5. The validity of Sub-Section (7) of Section 3 of U.P. Act No. 4 of 1994 has been questioned by Sri Ravi Kiran Jain on the ground that the State Legislature was not competent to enact Sub-section (7) of Section 3 of the U.P. Act No.4 of 1994 in view of the pronouncement by the Apex Court in Indra Swhnev's case. The arguments is mis-conceived. It is evident that Sub-section (7) of Section 3 by itself does not provide for any reservation. Rather it simply visualises that the Government Orders providing for reservations in promotion, as on the date of commencement of the Act will continue to be applicable till they are modified or revoked. Accordingly, we are of the view that the Government Orders on the subject of reservation in favour of Scheduled Castes for appointment to posts to be filled by promotion in favour of Scheduled Castes for appointment to posts to be filled by promotion in force on the date of commencement of the Act were capable for being invoked indecently of Sub-section (7) of Section 3 of U.P. Act No. 4 of 1994 by virtue the directions contained in Indra Swhney's case and after insertion of the Clause (4-A) in Article 16 of the Constitution of w.e.f. 17.06.1995, no exception can be taken to the provisions contained in Sub-section (7) of Section 3 of the Act which became valid and operative by strength of Clause (4-A) of Article 16 of the Constitution. It is true that but for insertion of Clause (4-A) in Article 16, Sub-section (7) of Section 3 would not have been available for being invoked on expiration of period of five years from 15.11.1993 but now after insertion of Clause (4-A) in Article 16 of the Constitution, Section 3(7) of U.P. Act No. 4 of 1994 has become a valid law and, therefore, it cannot be struck down a violative of Articles 14 and 16 of the constitution. It may be pertinently observed that now after insertion of Clause (4-A) in Article 16 of the Constitution the appropriate Government can, in exercise of its executive powers under Articles 73 and 162 of the Constitution, as the case may be, can provide for reservation in favour of Scheduled Castes/ Scheduled Tribes in matters of promotion of any class or classes of posts in the services under the State Government Order dated 31.03.1996 (Annexure CA-7) and other Government Orders referred to therein were issued by the State Government in exercise of its executive power under the Constitution.

19. Earlier percentage of reservation for SC category candidate was 18% and same was extended to 21% the said extension of quota from 18% to 21% has been subject matter of challenge before this Court in Full Bench judgment of this Court in the case of V.K. Bannerji v. State of U.P. and Ors. reported 1999 (1) ESC 644 wherein Full Bench of this Court has upheld the validity of the Government Order dated 10.10.1994 increasing reservation quota in promotion in favour of Scheduled Castes candidates from 18% to 21% under Section 3 of the Reservation Act 1994. This Court in the case of Sunil Kumar Mishra v. Regional Selection Committee and Ors. reported in 2004 (2) UPLBEC 1520 has taken the same view after considering various Government Orders, that reservation is applicable with full force in the matter of promotion upto 21% of the cadre strength. In yet another judgment of this Court in the case of Asha Jaiswal (Smt.) v. Joint Director of Education, Varanasi and Ors. reported in 2004 (2) UPLBEC 1837 this Court has taken the view that under U.P. Secondary Eduction Services Selection Board Act 1982 and the Rules framed there under no reservation has been provided for as such there is no provision for reservation in promotion. Said judgment has not taken note of existing Government Orders which still covered the field and which had not been modified or revoked in respect of promotion of SC/ST category candidate in terms of Section 3 (7) of U.P. Act No. 4 of 1994. Said judgment has been passed ignoring the Government Order and the correct position is mentioned in the case of Sunil Kumar Mishra v. Regional Selection Committee and Ors. reported in 2004 (2) UPLBEC 1520.

20. The logical conclusion on the basis of reference made above is that though in the matter of promotion under U.P. Act No. 5 of 1982 and the Rules framed thereunder there is no mention for providing any reservation, but as promotion is to be made in "public service and post" as defined under Section 2(c) and 2(c) (iv) of U.P. Act No. 4 of 1994 then in terms of Section 3(7) of U.P. Act No. 4 of 1994, the Government Orders which covered the field of promotion qua SC/ST category candidates, continue to be applicable till they are modified or revoked. As till date said Government Orders have not been revoked or modified, net effect of the same would be that 21% of vacancies is to be filled by way of promotion from amongst SC category and 2% of vacancies from amongst ST category candidates.

21. Now the second question posed is being looked into that in the absence of Schedule caste/Scheduled Tribes category candidate being available in the feeder cadre, can the post be offered to General category candidate from promotion quota or same shall be filled by by way of direct recruitment, from amongst reserve category candidate . State Government in its wisdom had chosen to provide reservation in promotion to SC/ST category candidates and has also prepared roster for implementation of the aforementioned policy of promotion. Provision of promotion with roster for promotion of SC/ST employees was already there when U.P. Act No. 4 of 1994 had been enforced. On 16.10.1994 percentage of reservation was increased qua SC candidates and of the same date fresh roster was published. Thereafter another roster for promotion of SC/ST employees was prepared on 15.12.2001 but same was cancelled on 23.11.2001 and fresh roster has been introduced on 25.06.2002. Thus, provision of promotion of SC/ST category candidate with roster has been inexistence both before enforcement of U.P. Act No. 4 of 1994 and after enforcement of U.P. Act No. 4 of 1994. The purpose of providing roster has been considered by Hon'ble Apex Court in the case of R.K. Sabharwal and Ors. v. State of Punjab and Ors. reported in 1995 (2) Supreme Court Cases 745. Relevant paragraphs of aforementioned Constitutional Bench judgment 4,5,6 and 10 are being quoted below:

" 4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts and in the event of their appoint to the said posts their number cannot be added and taken into consideration for working out the percentage or reservation. Article 16(4) of the Constitution of India permits the State Government to make any provisions for the reservation of appointments or post 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. It is, therefore incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State services. While doing so the State Government may take the total population of a particular backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Classes have already been appointed/ promoted against the general seats. As mentioned above the roster point which is reserved for a backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidates can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/ rules providing certain percentage of reservations for the Backward Classes are operative the same have be followed. Despite any number of appointees/promotes belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition. We, therefore, see no force in the first contention raised by the learned counsel and reject the same.

5. We see considerable force in the second contention raised by the learned counsel for the petitioners. The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each department. The roster is implemented in the form of running account from year to year. The purpose of "running account" is to make sure that the Scheduled Castes/ Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of "running account" in the impugned instructions has to be so interpreted that it does not result in excessive reservation.

" 16% of the posts... are reserved for members of the Scheduled Caste and Backward Classes. In a lot of 100 posts those falling at Serial Numbers 1,7,15,22,30,37,44,51,58,65,72,80,87 and 91 have been reserved and earmarked in the roster for the Scheduled Castes. Roster points 26 and 76 are reserved for the members of the Backward Classes. It is thus obvious that when recruitment to a cadre starts then 14 posts earmarked in the roster are to be filled from amongst the members of the Scheduled Castes. To illustrate, first post in a cadre must go to the Scheduled Caste and thereafter the said class is entitled to 7th, 15th 22nd and onwards up to 91st post. When the total number of posts in a cadre are filled by the operation of the roster then the result envisaged by the impugned instructions is achieved. In other words, in a cadre of 100 posts when the posts earmarked in the roster for the Scheduled Castes and the Backward Classes are filled the percentage of reservation provided for the reserved category is achieved. We see no justification to operate the roster thereafter. The "running account" is to operate only till the quota provided under the impugned instructions is reached and no thereafter. Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation of their population. The numerical quota of post is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permit the roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster. The operation of the roster and the 'running account must come to an end thereafter. The vacancies arising in the cadre, after the initial posts are filled, will pose no difficulty. As and when there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1,7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.

6. The expressions 'post' and vacancies, often used in the executive instructions providing for reservations are rather problematical. The word "post means an appointment, job, office, or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservations has to be worked out in relation to the number of posts which form the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation.

10. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100 point roster., 14 posts at various roster points are filled from amongst the Scheduled Caste/Scheduled Tribe candidates, 2 posts are filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31.12.1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Castes and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled and thereafter the vacancies falling in the cadre are to be filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster point it would be open to the State Government to forward the point in a just and fair manner."

22. As per the said judgment reservation has to be done in relation to the number of post comprising the cadre and not in relation to vacancies. The Word "posts" means an appointment, job, office or employment a position to which person is appointed. On the other hand, Vacancy means an unoccupied post or office. The place meaning of the two expressions makes it clear that there must be a 'post' in existence to enable the vacancy to occur. The cadrestrength is always measured by the number of posts comprising the cadre. The roster indicates the reserve points, when percentage for reservation is fixed in respect of a particular cadre and same has to be taken that the posts shown at the reserve points are to be filled up from amongst the members of reserve category candidates and the candidates belonging general category are not entitled to be considered for the reserved posts. State Government, however has been vested with the authority in the event of non-availability of reserved candidate at the roster point to carry forward the point in just and fair manner. Thus, this much is clear that when the point is fixed for reserved category candidates by way of roster then same has to be filled from amongst the members of reserve category and the candidates belonging to General category are not entitled to be considered on the reserved post and the Sate Government has discretion to carry forward the point in just and fair manner. Thus, reserved post cannot be offered to other category candidate and State Government is empowered to carry forward the said point in just and fair manner.

23. In the case of Ajit Singh and Ors. v. State of Punjab and Ors. reported in 1999 (7) Supreme Court Cases 209 Hon'ble Apex Court while considering the question as to whether right to be considered for promotion is a fundamental right granted under Article 16(1) or mere statutory right has taken the view that right to be considered for promotion is fundamental right and further that the provision as contained under Article 16(4), 16(4-A) of the Constitution is in the nature of enabling provisions and there is no directive or command implicit in it and same vest discretion in the State to consider providing reservation. In the said judgment itself after noticing Article 16(1) dealing with fundamental right and Article 16(4) and 16(4-A) as enabling provisions, the exercise of balancing Article 16(1) and Article 16(4) and 16(4-A) has been undertaken and in this direction earlier judgment of Hon'ble Apex Court has been referred to where in balancing principles has been enunciated. Constitutional Bench judgment reported in AIR 1963 SC 649 M.R. Balaji v. State of Mysore has been referred to wherein it has been stated that the interests of reserved classes must be balanced against the interests of other segments of society. Further observations made in the case of Indra Sawhney and Ors. v. Union of India and Ors. reported in 1992 Supp. (3) SCC 217 has been extracted by mentioning that provisions under Article 16(4) has been conceived in the interest of certain sections of society and same should be balanced against the guarantee of equality enshrined in Clause 1 of Article 16 held out to every citizens and to the entire society, and the Court has to ensure that in the matters relating to affirmative action by the State, the rights under Article 14 and 16 of the Constitution of India of an individual to equality of opportunity are not affected. A reasonable balance has to be struck so that affirmative action does not lead to reverse discrimination. These two decisions of Hon'ble Apex Court has been followed in the case PGI of Medical Educations Research Chandigarh v. Faculty Education reported in 1998 (4) SCC. Relevant paragraph 31 and 32 is being quoted below:

31.There is no difficulty in appreciating that there is need for reservation for the members of the Scheduled Castes and Scheduled Tribes and Other Backward Classes and such reservation is not confined to the initial appointment in a cadre by also to the appointment in a promotional post. It cannot however be lost sight of that in the anxiety for such reservation for the backward classes, a situation should not be brought about by which the chance of appointment is completely taken away so far as the members of the other segments of the society are concerned by making such a single post cent percent reserved for the reserved categories to the exclusi8on of other members of the community even when such a member is senior in service and is otherwise more meritorious.

32.Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the community who do not belong to reserved classes. Such view has been indicated in the Constitution Bench decision of this Court in M.R. Balaii v. State of Mysore reported in AIR 1963 SC 649 and T Devadasan v. Union of India reported in AIR 1964 SC 179 and R.K. Sabharwal and Ors. v. State of Punjab and Ors. reported in 1995 (2) Supreme Court Cases 745. Even in Indra Sawhney and Ors. v. Union of India and Ors. reported in 1992 Supp. (3) SCC 217 the same view has been held by indicating that only a limited reservation not exceeding 50% is permissible. It is to be appreciated that Article 15(4) is an enabling provision like Article 16(4) and the reservation under either provision should not exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15(4) [sic 16(4)] must therefore strike a balance between several relevant considerations and proceed objectively. In this connection reference may be made to the decisions of this Court in State of A.P. v. U.S.V. Balram reported in 1972 1 SCC 660 and C.A Rajendran v. Union of India AIR 1968 SC 507. It has been indicated in Indra Swhney case that Clause (4) of Article 16 is not in the nature of an exception to classes (1) and (2) of Article 16 but in an instance of classification permitted by Clause (1). It has also been indicated in the said decision that Clause (4) of Article 16 does not cover the entire filed covered by Clauses (1) and (2) of Article. In Indra Swhney this court has also indicated that in the interest of the backward classes of citizens, the State cannot reserve all the appointments under the State of even a majority of them. The doctrine of equality of opportunity in Clause (1) of Article 16 is to be reconciled in favour of backward classes under Clause (4) of Article 16 in such a manner that the latter while serving the cause of backward classes shall not unreasonably encroach upon the field of equality.

24. Article 14, 15 and 16 including Articles 16(4) and Article 16(4-A) has to be applied in such a manner so that balance is struck in the matter of appointments, by creating reasonable opportunities for reserved class both in the matter of direct appointment and in promotion for SC/ST category candidate, as well as candidates from other segments of society, State Government in order to provide adequate representation to SC/ST category candidates has chosen to provide reservation to SC/ST category candidate, and the same has been sought to be extended in the matter of promotion also. State Government in its wisdom has published roster, qua the promotion and therein, fixed points have been provided for. Roster points are nothing else but the indicator of balance which has been sought to be maintained qua candidates of other category. By preparation of roster, balance has been struck qua the interest of reserve category candidate and other segments of the Society. Managing Committee of every institution is obliged to prepare roster, qua their respective institution grade wise as per model roster, prescribing fixed points, and the concerned District Inspector of Schools has full authority to see and supervise that said roster has been prepared strictly in consonance with the model roster and its implementation is also in accordance to the same. If this is ensured, the parties will know their position and there will be no much room of grievance on the part of both category or candidates in this respect as it would be maintaining balance between the demands of merit and social justice. Once a particular point for a particular section under the roster has been declared, then the post at the said point would be offered to candidate from the said category and to no one else. Roster would operate, only till all the roster points in cadre are filled and quota prescribed in instruction are achieved. The same would be in the form of running account, from year to year, and subsequent vacancies are to be filled from the categories to which the post belonged. The operations of roster, for filling cadre strength by itself ensures that reservations remains, within 50% limit so that balance is not disturbed and right of General Category candidates is not defeated. Right of consideration of candidature for promotion has been held to be fundamental right, but said right will come into play, when incumbent falls within the zone of consideration. Once post in question is reserved by providing fix point, then general category candidate is excluded from the zone of consideration. This is the rigor of roster point. Thus, post meant for SC/ST candidate, shown in roster has to be offered to SC/ST candidate and as mentioned in R.K. Sabarwals (supra) case, roster cannot be changed or altered and said point post has to be filled up only from the said category and State Government can only forward the said point and here State Government has taken decision, that in the event of non availability of reserve category candidate, in the matter of promotion, the said post would be shifted to direct recruitment quota and in future, if candidates are available in feeder cadre, then necessary adjustment would be made . Now taking the case in hand it is reflected that Deputy Director of Education in the present case at no point of time has adverted to all these aspects of the matter that there was existing Government Order which covered the field of reservation in the matter of promotion and there was an exiting roster. In the present case as Deputy Director of Eduction has not undertaken any exercise while directing promotion of Rama Kant Mishra whereas Deputy Director of Education was enjoined upon to see as to whether post in question was reserved for Scheduled Caste/Scheduled Tribes or not. As no exercise whatsoever has been done in the present case as such entire proceedings undertaken by the Deputy Director of Education is clearly vitiated and is unsustainable.

25. Consequently, writ petition filed by Management is allowed and two writ petitions filed by Ramakant Mishra are dismissed. Joint Director of Education, Allahabad is directed to decide the matter afresh, after providing opportunity to Management as well as Sri Rama Kant Mishra.

26. No orders as to cost.