Two orders are subject matter of challenge in this writ petition namely, order dated 28.6.2008 passed by the Regional Promotion Committee, headed by the Joint Director of Education IV th Region, Allahabad and order dated 8.7.2008 passed by the Director of Education (Secondary) U.P. Lucknow. Both the orders reject the claim of the petitioner for being promoted as Lecturer in the institution namely, Arya Kanya Intermediate College, Allahabad and affirming appointment of respondent no. 7 by absorption under section 21-E of the U.P. Intermediate Education Act, 1921.
It is stated at Bar that respondent no. 7 has been appointed as lecturer in Subhash Chand Inter College, Bareilly by order dated 3.10.2009. She has assumed the charge on 3.10.2009. In view of this, only question that survives for consideration in the writ petition is as to whether the petitioner was eligible to be appointed as lecturer in the institution from the promotional quota.
In order to appreciate the controversy raised in the writ petition, the following facts are required to be noted :
The institution namely, Arya Kanya Intermediate College, Allahabad (in short as the institution) is a duly recognized and aided institution and is governed by the provisions of U.P. Intermediate Education Act, 1921 (in short as 'the Act') and U.P. Act No. 24 of 1971. There exists 22 sanctioned posts of lecturers in the institution as against which there are 16 lecturers working in the institution. Out of 16 lecturers presently working, 8 have been appointed by direct recruitment and 8 lecturers from promotional quota. There exists 50% quota from amongst L.T. Grade teachers of the institution and 11 posts are required to be filled up by way of promotion.
There are 3 vacancies of lecturer under the promotional quota on the relevant date. Out of 6 available posts in the institution, one post of lecturer in Physics and 2 posts of lecturer in Education have been notified by the educational authorities to the U.P. Secondary Education Services Selection Board for being filled up by recruitment of candidates belonging to scheduled caste category. The remaining three vacancies of lecturers including lecturer in History is required to be filled up by promotional quota.
One post of lecturer fell vacant on account of retirement of one Smt. Neelam Srivastava on 30.6.2007, who was working as lecturer in History. On the date of vacancy, the petitioner was the only eligible candidate who could have been considered on the post of lecturer as she fulfilled the requisite qualification of having Master degree in History. On the post becoming available, a representation was made by the petitioner to the educational authorities for promoting her to the said post. Having failed to get any response from the educational authorities, the petitioner filed a writ petition before this Court being Civil Misc. Writ Petition No. 6191 of 2008 which was disposed of by this Court on 31.1.2008 with a direction to the respondents to consider the case of the petitioner.
In compliance of the aforesaid judgment and on the representation made by the petitioner, an order dated dated 28.6.2008 was passed by the Regional Promotion Committee rejecting the claim of the petitioner for appointment as lecturer in History. The representation of the petitioner has been rejected on the ground that the post under promotional quota in History Department was required to be filled up from the candidates of the Scheduled Caste category while as the petitioner belongs to general category. The order further reveals that no resolution was passed by the management seeking appointment of the petitioner against the said post. Under these circumstances, the present writ petition has been filed.
I have heard the learned counsel for the parties.
The petitioner has questioned the order of the respondents on the ground that the post of lecturer in History was required to be filled up from promotional quota while as respondent no. 7 has been appointed by absorption by taking recourse to Section 21-E of U.P. Intermediate Education Act, 1921. Respondent no. 7 was subject matter expert and her appointment can be made in the institution against a clear vacancy which is required to be filled up by direct recruitment. While applying roster point prepared for 100 candidates, vacancies at serial nos. 1, 6 and 11 fall under the category of scheduled caste. The post of lecturer in History figures at point no. 10 could not be earmarked for the candidates of scheduled caste.
The second ground taken by the petitioner is that the quota reserved for Scheduled caste & Scheduled Tribe is 21% and 2% respectively. The total number of posts to be filled up from promotion is 11. The scheduled caste would be entitled to 2.3 seats which would come to 2 posts and for scheduled tribes quota is 2% and their share would be .2, and as such, no reservation could be provided for the said category. Admittedly, after retirement of Smt. Neelam Sharma only 8 posts are filled up from the promotional quota. The Scheduled caste would be entitled to get 2 posts while no post could be reserved for scheduled tribes, which leaves one post vacant and same is required to be filled up from amongst promotional quota.
The last argument of the learned counsel for the petitioner is that while appointing respondent no. 7 recourse has been taken to proviso-10 which provides that if in any year suitable eligible candidates are not available, the post will be filled up by direct recruitment. Admittedly, the petitioner was eligible and available for appointment under the promotional quota, therefore, the appointment of respondent no. 7 by invoking this rule was uncalled for.
On the other hand, the stand of the respondents is that this post is required to be filled up under the scheduled caste quota and due to non-availability of the candidates from the scheduled caste category recourse has been taken to proviso to Rule-10 by appointing respondent no. 7. The petitioner has no right of consideration against the said post. It is further stated that on the relevant date 9 lecturers from general category were working against promotional quota. There was no vacancy to be filled up from general category.
I have heard the learned counsel for the parties.
Before adverting to the facts of the case, it is necessary to see the rule position required to be followed in the present case. Rule-10 of Rules of 1998 provides that appointment to the post of lecturer would be made 50% from promotional quota and 50% from direct recruitment. In case of non-availability of the candidates from the promotional quota, the post can be field up by direct recruitment. The second aspect of the matter is that percentage of the reservation provided for the scheduled caste and scheduled tribes is admittedly 21% and 2% respectively. Out of 11 posts under the promotional quota, 2 posts are to be filled in from the category of scheduled caste and no post can be reserved for scheduled tribes on the basis of percentage fixed in this quota, that leaves 9 posts which are required to be filled up. Out of 9 posts, as on the date, appointments were made against all the 9 posts from promotional quota from General category, as stated by the respondents,. On retirement of one Neelam Srivastava, one post of lecturer in History became available under the promotional quota on the said date. In paragraph-7 of the rejoinder affidavit, it is stated that there are only 16 lecturers working in the college at the relevant time as one lecturer Smt. Asha Singh, lecturer in Sanskrit has retired from service on 30.6.2008. She was appointed from promotional quota. As on today, there are 8 posts filled up from promotional quota, leaving 2 vacancies out of which 3 which are required to be filled up from the scheduled caste and one post from the general category. There is as no post to be filled from the scheduled tribes category on the basis of total strength of the cadre.
Admittedly, the post of Smt. Asha Singh had not fallen vacant on the date when the appointment to the post was made. It is only on 30.6.2008 this vacancy became available. On the date of making appointment to the post of lecturer in History, 9 lecturers from General category were already working. The petitioner could not have claimed any right on the said post on that date. The petitioner has in his written arguments, which is part of record, stated that 9 posts were already filled up,as on date, and one post of lecturer in History has become available, which is required to be filled up from the promotional quota. The appointment of respondent no. 7 was done in pursuance of proviso to Rule-10 of Rules of 1998 which provides that if there was no candidate available for the promotional quota from the Scheduled caste, the said vacancy could be filled up by the candidates from the direct recruitment quota. The contention of the learned counsel for the petitioner is that in terms of this rule petitioner was eligible to be considered as he was the only candidate available from the promotional quota. The non-availability of the persons from promotional quota would have reference only to persons belonging to the scheduled caste and not persons belonging to the general category. In this context, respondent no. 7 was appointed against the said vacancy in order to ensure that the ratio of quota available for every candidate remains with the circumstanced limits. Admittedly, the promotional quota on the date of appointment was filled up and no person was available from the scheduled caste candidates, it was decided to fill up this post from the general category. I am not inclined to agree that on account of non-availability of the person from the scheduled caste, person belonging to the general category could be appointed.
In view of this I find no force in the writ petition. It is accordingly dismissed. However, looking to the fact that respondent no. 7 has been appointed in a different institution, one post of lecturer being vacant on account of retirement of Smt. Asha Singh from the promotional quota, necessary process for selection to the said post is to be undertaken by the respondents. In that eventuality, the case of the petitioner shall also be considered along with other eligible candidates.
Order Date :- 15.5.2012 SU.