Hon'ble Dr. Satish Chandra, J.
Heard Counsel for the applicant, Sri Prabhakar Tiwari, Counsel for the Corporation and Standing Counsel.
This Review Petition has been filed by the petitioner inter-alia on the ground that there is error apparent in the impugned judgment as some facts have incorrectly been mentioned.
The factual mistakes are not disputed by the Parties Counsel.
We have gone through the judgment and order dated 11.12.2009 and it appears that due to some inadvertent typographical error the paragraph 122 has been reproduced of the judgment dated 19.11.2008 passed in writ petition no. 1208(SB) of 2008 whereas paragraph 121 of the judgment was to be reproduced wherein certain guidelines have been laid down with regard to reservation. Further, some factual position was also left to be transcribed. The modification of the judgment would unnecessarily lead to confusion on account of several typographical errors. Therefore, we deem it appropriate to recall the aforesaid judgment dated 11.12.2009 and proceed to pass fresh order, which shall be read as under:-
As the controversy relating to reservation in promotion on the post of Engineer-in-Chief in the Irrigation Department arose, a writ petition number 1208(SB) of 2008; Dharampal Singh Chauhan and another vs. State of U.P. and others was filed in which a Division Bench of this Court in its judgment and order dated 19.11.2008 observed in paragraph 121 as under:-
"121. Subject to above, we record our finding as under:
(1) In the event of conflict between the quota of reservation and roster, the former shall preval over the later, as held by Hon'ble Supreme Court in the case of R. S. Garg (supra). While applying quota for reservation and roster, the State have to confine the outer limit of reservation provided by 1993 Act for SC, ST and OBC category.
(2) The extent of reservation provided by sub- section 1 of Section 3 of 1994 Act, is mandatory. In the matter of promotion of recruitment reservation cannot exceed the outer limit of 21%, 2% and 27% for SC, ST and OBC.
(3) Under the garb of sub-section (5) while applying roster or sub-section (7) of Section 3 of 1994 Act, the State cannot travel beyond the outer limit of reservation provided by sub-section (1) of Section 3 of 1994 Act. Meaning thereby, even while applying roster for SC, ST or OBC, the outer limit of 21%, 2% or 27% should be adhered to.
(4) The outer limit of 50% provided by Article 16 (4-B) of the Constitution or by Hon'ble Supreme Court right from M. R. Balaji's case (supra) till date, includes the reservation for all the categories or classes of employees. In case reservation is provided only for one category like in the present case, 21% to SC category, then it does not mean that State has right to enhance reservation upto 50% suo motu exceeding the statutory quota provided by the Act and statute. 50% rider is the outer limit permissible for all categories and in case under the Act or statutes lesser percentage of reservation has been provided to any class, then that will be the outer limit for the respective classes as in the present case, reservation for SC is 21% and it cannot be enhanced to 50%.
(5) While exercising power for purpose of reservation keeping in view the law laid down by the Hon'ble Supreme Court in M. Nagraj's case (supra) to find out the backwardness or inadequacy of representation keeping in view the necessity and efficiency provided by Article 335 of the Constitution, the Government cannot travel beyond the outer limit of quota provided under sub-section (1) of Section 3 of 1994 Act for SC, ST and OBC, i.e. 21%, 2% and 27% respectively in the matter of promotion.
(6) Any reservation made exceeding the outer limit provided under the 1994 Act or the statutes, shall be deemed to be excessive reservation and the reservation so made, may be struck down by the Court as it would amount to derogation of constitutional requirement as held in M. Nagraj's case (supra).
In the present case since the sanctioned strength of the post of Engineer-in-Chief is two and the quota of Scheduled Caste is 21% under sub-section (1) of Section 3 of the 1994 Act, one out of two posts cannot be reserved for scheduled caste."
Counsel for the petitioner contended that when the process for promotion on the post of Executive Engineer, which fell vacant on 30.6.2009 in the Corporation, there was no need of making reference to the State Government as the controversy relating to promotion on single post stood finally decided by the aforesaid judgment. Therefore, the Managing Director wrongly referred the matter to the State Government vide impugned letter dated 11.8.2009. Further, though the matter was referred in the month of August, 09 the State Government is sitting tight over the matter and no decision has been taken as yet causing serious prejudice to the petitioner.
As the prayer of the petitioner's Counsel is innocuous, learned Counsel for the opposite parties has no objection, if a direction is issued to the State government to take appropriate action in the matter.
In view of above, both the Review Petition as well as Writ Petition are disposed of finally with a direction to the State Government/opposite party No.1 to take appropriate decision in the matter which was referred by the Managing Director to the State Government through the letter dated 11.8.2009 expeditiously and preferably by 31.3.2010.
8.1.10 HM/-