Allahabad High Court
Tejveer Singh vs State Of U.P. And Others on 6 January, 2011
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 26 Case :- WRIT - A No. - 39995 of 2006 Petitioner :- Tejveer Singh Respondent :- State Of U.P. And Others Petitioner Counsel :- Radha Kant Ojha, Satyanshu Ojha Respondent Counsel :- C.S.C., S.P. Singh Hon'ble Sudhir Agarwal, J.
1.The writ petition is directed against the order dated 12.7.2006 (Annexure 11 to the writ petition) whereby the Joint Director of Education (First), Meerut has declared the respondents no. 5 to 8 senior to the petitioner on the post of Lecturer.
2.Sri R.K. Ojha, learned counsel appearing for the petitioner at the outset stated that since respondents 5 to 7 have already retired, he is pressing the writ petition only against the respondent no. 8 and, therefore, this Court is confining the issue of seniority only between the petitioner and respondents no. 8.
3.The facts in brief, giving rise to the present dispute, are as under.
4.Kisan Inter College, Madhi, Meerut (hereinafter referred to as 'College') is a recognized aided intermediate college governed by the provisions of U.P. Intermediate Education Act, 1921 (hereinafter referred to as '1921 Act') and U.P. High School and U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as '1971 Act'). Recruitment of teaching staff is to be made in the College through the Selection Board under the provisions of U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as '1982 Act') and the Rules and Regulations as well as Removal of Difficulties Orders issued thereunder. It is said that there were total 9 posts of Lecturer sanctioned in the College. The petitioner was appointed as L.T. Grade Assistant Teacher on 14.8.1974. On 30.6.1991, Sri Har Saran Das Maurya, the then Principal of the College retired as a result whereof one Sri Mahipal Singh Thaka, Lecturer (Economics), was promoted on ad hoc basis on 1.7.1991 which was approved by District Inspector of Schools, Meerut (hereinafter referred to as 'DIOS') by order dated 26.12.1992. Claiming ad hoc promotion in a short term vacancy caused due to ad hoc promotion of Sri Mahipal Singh Thaka as Principal, the petitioner made several representations and, thereafter, came to this Court in Writ Petition No. Nil of 1993, which was disposed vide judgment dated 5.7.1993 directing the DIOS to decide petitioner's representation by a reasoned order within one month. Pursuant to the direction of this Court, the DIOS passed an order on 4.3.1994 holding that petitioner was eligible and entitled to be promoted on ad hoc basis against short term vacancy on the post of Lecturer (Economics) and the same is being accordingly approved by him. The post of Lecturer (Economics) fell substantively vacant on 31.8.1994 due to voluntary retirement sought by Sri Mahipal Singh Thaka and, hence, the petitioner claimed to be entitled for substantiv appointment as Lecturer in the said vacancy having fulfilled all the requisite qualifications and other conditions under the rules.
5.So far as respondent no. 8 is concerned, he was appointed as Lecturer (Geography) on ad hoc basis in the year 1989. His appointment was approved by DIOS on 13.12.1989 initially for a period upto 4.5.1990 which subsequently continued due to non availability of any regularly selected candidate and pursuant to the interim order dated 10.5.1990 passed by this Court in Writ Petition No. 12389 of 1990 filed by respondent no. 8. This writ petition has been finally allowed vide judgement dated 3.1.2006 holding that the respondent no. 8 having already been regularized under Section 33-B of the 1982 Act vide order dated 2.5.1996, the same would stand valid. It is said that appointment of respondent no. 8 was made against a vacancy reserved for scheduled caste, hence, was not regular.
6.Petitioner's ad hoc appointment on the post of Lecturer (Economics) was regularized by order dated 3.5.2001 passed by the Joint Director of Education (First), Meerut with effect from the date of taking over charge after the said approval. Subsequently, due to occurrence of vacancy on the post of Principal, the matter of seniority of Lecturers became of utmost importance which the respondents were not determining, hence the petitioner came to this Court in Writ Petition No. 1548 of 2006, which was disposed of vide judgement dated 10.1.2006 directing the Joint Director of Education to decide the claim of seniority of the petitioner. Consequent thereto, a representation was made and after hearing all the concerned parties, the Joint Director of Education, by means of the impugned order, has determined the seniority of the petitioner qua other teachers including respondent no. 8.
7.There being 9 sanctioned posts in the College, the quota of recruitment and promotion being 50%, five vacancies could have been filled in by promotion and four by direct recruitment. It is not in dispute that the respondent no. 8 continued to work as Lecturer (Geography) since his appointment on 13.12.1989 and was confirmed on 2.5.1996 treating his probation with effect from 6.8.1993, as is mentioned on page 78 of the paper book. The date on which the respondent no. 8 was placed on probation, i.e., 6.8.1993, the petitioner was not even holding the post of Lecturer in any capacity. The DIOS, pursuant to this Court's judgement dated 5.7.1993 in writ petition of the petitioner passed order on 4.3.1994 holding him eligible for ad hoc promotion on the post of Lecturer (Economics) and recognized/approved his ad hoc promotion accordingly, but as a matter of fact, there is nothing on record to show that the petitioner was ever appointed in any manner actually on the post of Lecture before 4.3.1994. It, however, appears that in pursuant to DIOS's order dated 4.3.1994, the petitioner was paid salary on the post of Lecturer with effect from 5.7.1993, i.e., the date on which the petitioner's writ petition was disposed by this Court directing DIOS to decide his representation by a reasoned order. Though there is nothing in the judgment of this Court which may suggest that the authorities were ever directed to treat petitioner as ad hoc Lecturer from the date of judgment, how and in what manner the petitioner was paid salary from 5.7.1993 is not clear. On the contrary, the DIOS's order dated 4.3.1994 makes it clear for the first time on that date itself and petitioner's promotion accordingly was approved by DIOS by the said order. At the best the petitioner could have been treated to be a validly promoted ad hoc Lecturer from 4.3.1994.
8.Learned counsel for the petitioner despite of repeated query could not place on record any order of appointment/promotion of petitioner whereby he was promoted as Lecturer (Economics) on 5.7.1993. He also could not point out anything from the order dated 4.3.1994 which may suggest that DIOS approved ad hoc promotion of petitioner on the post of Lecturer (Economics) with retrospective effect, i.e. 5.7.1993. The mere fact that the authorities in agreement with the Management paid salary to petitioner on the post of Lecturer from 57.1993 would not make petitioner appointed on the post of Lecturer (Economics) retrospective with i.e. with effect from 5.7.1993.
9.Besides, it is also evident from record that post of Lecturer (Economics) fell vacant on substantive basis on 31.8.1994 after voluntary retirement sought by Sri Mahipal Singh. The Joint Director of Education, while considering claim of the petitioner for regular promotion on the post of Lecturer (Economics), passed order on 3.5.2001 holding that earlier promotion was obtained by petitioner by concealment of facts and, therefore, the said promotion shall be deemed revoked. It further directed the Management to take further steps in accordance with Rule 14(6) of 1998 Rules and that the promotion of petitioner shall be deemed to have been approved from the date of taking over charge after promotion under rule 14 pursuant to the order dated 3.5.2001. This order has the effect of cancelling promotion of petitioner made earlier and directing to make fresh promotion which was to be given effect after the said order. The validity of this order, it is said and admitted by the petitioner, has not been challenged at any stage and the said order has attained finality. That being so, in whatever manner, the petitioner may claim his seniority, it cannot relate back before 3.5.2001 by which time respondent no. 8 was already appointed on substantive basis as Lecturer. Hence under Regulation 2 Chapter II of Regulations he is senior to the petitioner. The regulations provides the reckoning point of seniority, date of order of substantive appointment. The appointment of respondent no. 8 making him substantive on the post of Lecturer (Economics) having been issued much earlier to 3.5.2001 (Annexure 7 to the writ petition) by no stretch of imagination, the petitioner can claim seniority over the respondent no. 8. It is then argued by Sri Ojha, learned counsel for the petitioner, that delay, if any, occurred in promotion of petitioner to the existing substantive vacancy was on the part of respondent-Management for which petitioner cannot be made to suffer and reliance is placed on the decisions of this Court in Santosh Kumar Dubey & others Vs. State of U.P. & others 2010 (1) ESC 341 and Committee of Management, Swami Lila Shah Adarsh Sindhi Inter College, Agra & another Vs. State of U.P. & others 2010 (1) ESC 358. However, in my view, benefit of these these two judgements cannot be extended to the petitioner in the peculiar facts and circumstances of the present case. In the case in hand an order has been passed by Joint Director of Education on 3.5.2001 cancelling earlier promotion of petitioner observing that the same was obtained by concealment of fact, though details of such concealment etc. have not been given. He also says that Management shall take steps for promotion under Rule 14 of 1998 Rules and the petitioner's promotion on the post of Lecturer shall be treated to have been approved from the date of taking over charge after the order dated 3.5.2001. This order has not been challenged by the petitioner at all and has attained finality. Before this Court also, no grievance has been raised by petitioner against this order. On a query made from the learned counsel for the petitioner as to whether any further order was passed after order dated 3.5.2001, he could not place any order of regular appointment of petitioner on the post of Lecturer after the order dated 3.5.2001. What he actually submits is that all the authorities as a matter of fact treated this very order being an order of regular appointment of petitioner on the post of Lecturer giving it effect from 3.5.2001. Even if this is so accepted, it also would not take the case of the petitioner any further.
10.It is also argued that appointment of respondent no. 8 was made in a vacancy reserved for Scheduled Caste. At no point of time the vacancy was declared open and available for a general candidate. Hence, the respondent no. 8 cannot claim any right of seniority on a post held by him illegally. Thus, whatever may be the date of substantive appointment of the petitioner, he would be senior since the respondent no. 8 has never been appointed on a vacancy available for general category candidate, but was occupying the post reserved for Scheduled Caste, which disentitle him any substantive claim on the said post.
11.This submission also cannot be accepted for reasons more than one. It is admitted that there were total 9 sanctioned posts of Lecturer in the College. Hence, for promotion, 5 posts were available and 4 for direct recruitment. In order to make reservation quota for Scheduled Caste applicable to the post available for direct recruitment, the number of posts being only 4, no post could have been reserved otherwise it would have exceeded the prescribed quota meant for Scheduled Castes in direct recruitment under U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as the "1994 Act"). This aspect has been considered in detail in several cases. Referring to an earlier Division Bench Judgment of this Court in Smt. Pholpati Devi Vs. Smt. Asha Jaiswal and others, 2009(2) ADJ 90, in Nem Singh Vs. State of U.P. & others 2009 (5) ESC 3550 (All), this Court considered a similar question and in para 8, 9, 10, 11 and 13 held as under:
"8. The short questions up for consideration in this case are two as under:
1.Whether for applying reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes the quota is to be considered in respect to the total number of posts in the cadre irrespective of the source from which they are to be filled in; and
2.Whether in the light of Rule 10 and 14 of 1995 Rules the eligibility of the candidate in promotion quota is to be considered confining to a reserve category or the candidates available for promotion as a whole irrespective of the relevant category.
9. It cannot be disputed that reservation made for Scheduled Castes, Scheduled Tribes and Other Backward Classes in services vide Act, 1994 is applicable for appointment to the post of Lecturer in the College in the case in hand also. Section 3 thereof provides for the extent of reservation in favour of the above mentioned three categories and it reads as under:
"3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes-(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies 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 Castes twenty-one per cent; (b) in the case of Scheduled Tribes two per cent;
(c) in the case of case other twenty seven per cent;
backward classes of citizens.
Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule 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 the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes.
(4) Where, due to non-availability of suitable candidates any of the vacancies reserved 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 one per cent 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 persons 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, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked."
10. A bare perusal of Section 3(1) of Act, 1994 shows that the limit of reservation of vacancies prescribed therein is in respect to the direct recruitment and the roster prescribed under sub-section 5 is also with respect to sub-section 1, i.e., for direct recruitment. With respect to promotion sub-section 7 of Section 3 provides that the Government Orders as applicable providing for reservation in promotion shall continue to apply till they are modified or revoked. It is not in dispute that in the matter of promotion also reservation to the extent as provided under sub-section 1 of Section 3 to the above three categories has been made applicable. The purpose, however, for referring the above provision is to show that the legislature also has considered reservation in respect to direct recruitment and promotion separately treating the same different in the context of reservation. The reason is quite obvious. The persons who will be entitled to be considered in the two kinds of recruitment will be different inasmuch as the word "promotion" itself concede the persons who are already in service who will be considered but in case of direct recruitment it relates to selection and appointment from open market of the persons who are not already in service of the employer who has resorted to the concerned direct recruitment. The procedure and criteria for two kinds of selection is also different. Therefore, by no stretch of imagination it can be held that for the purpose of applying reservation under Section 3 of Act, 1994 the posts/vacancies as are available for direct recruitment can be clubbed with those which are to be filled in by promotion in order to work out the vacancy or post, if any, available for reservation. For example if there are 10 posts and all are to be filled in by direct recruitment, the reservation prescribed in sub-section 1 of Section 3 of Act, 1994 would be applicable to all the 10 posts but if 5 are to be filled in by promotion and 5 by direct recruitment, for the purpose of determining the vacancy, if any, available for reservation, both have to be considered separately and cannot be clubbed in order to find out the number of vacancies/posts available for reservation in a particular category.
11. A similar controversy came to be considered before this Court in Smt. Pholpati Devi (supra) where there were 7 sanctioned posts of Lecturers and taking the same together the authorities decided to fill in one post from reserve category, i.e., scheduled castes. The Court held as under:
"In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at the best four posts would have been available for one source of recruitment, i.e., direct recruitment or promotion. The reservation for scheduled castes is 21%. If we treat one of the vacancies in either of the source of recruitment in the institution as reserved for scheduled caste, it would be more than 21%. The Apex Court in R.S. Garg Vs. State of U.P. & others 2006 (6) SCC 430 has held as under :
"40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements."
Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it cannot be exceeded thereto. In the case in hand, one of the vacancy if treated to be reserved for scheduled caste candidate out of four vacancies, the reservation would come to 25%, which would exceed the maximum extent of reservation prescribed for scheduled caste candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent no. 1 treating one post of lecturer reserved for scheduled casts in promotion quota, therefore, was illegal and has rightly been set aside by Hon'ble Single Judge."
"13. In view of the above exposition of law the clubbing of vacancies which were to be filled in by promotion alongwith those which were to be filled in by direct recruitment was impermissible in law and the impugned order having been passed ignoring this aspect of the matter is wholly illegal."
12.It is evident that in a case where recruitment is made from difference sources, the total number of posts available for different sources cannot be clubbed together in order to apply quota meant for reservation particularly when Section 3 of 1994 Act specifically provides quota for reservation against one of the sources of recruitment only, i.e., direct recruitment. In fact, a careful perusal of provisions of 1994 Act will show that the same have treated the different sources of recruitment, i.e., direct recruitment and promotion under different heads and, therefore, to apply the percentage of reservation quota in a given case, if there are more than one source for recruitment, the reservation quota would also be applied separately against the available number of vacancies in a particular source of recruitment.
13.In the case in hand, for direct recruitment, only 4 vacancies being available, if a single vacancy is kept reserved for scheduled caste, the percentage of reservation for Scheduled Caste will come to 25% which would exceed prescribed percentage of 21% in 1994 Act, which is not permissible in view of the law laid down by the Apex Court R.S. Garg (supra). Hence, it cannot be said that the post on which the respondent no. 8 was appointed on ad hoc basis initially in 1989 could have been reserved for scheduled caste. Though the initial order of appointment say so but this was not in accordance with law and shall not come against the interest of the respondent no. 8. Moreover, the ultimate judgment passed by this Court in Writ Petition No. 12389 of 1990 decided on 3.1.2006 has upheld the validity of the said appointment, hence also no infirmity on this account can be said to exist in the appointment of respondent no.8.
14.In the circumstances, I find no reason to interfere with the impugned order determining seniority of the petitioner below respondent no. 8.
15.The writ petition, therefore, lacks merit, dismissed.
Dt. 6.1.2011 PS