Allahabad High Court
Heera Lal vs State Of U.P. & Others on 9 July, 2010
Bench: Ashok Bhushan, Arun Tandon, A.P. Sahi
1
Reserved
Civil Misc. Writ Petition No. 51617 of 2009
Heera Lal Vs. State of U.P. and others
Connected with
Civil Misc. Writ Petition No. 31716 of 2004
Satya Brat Nath Vs. State of U.P. and others
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Hon'ble Ashok Bhushan, J.
Hon'ble Arun Tandon, J.
Hon'ble A.P. Sahi, J.
This reference has been made for an authoritative pronouncement on the issue of applying the rule of reservation for schedule caste candidates in aided educational institutions (High School & Intermediate) in promotion and direct recruitment against Class III posts (clerical grade) to the extent of 21% as provided for under the statute and the application of the roster through a mathematical calculation integrated with legal implications where the number of posts in a sanctioned cadre is less than five.
It entails an adjudication on the questions posed by one of us (Hon'ble A.P.Sahi, J.) vide order dated 7th October, 2009 passed in Heera Lal Vs. State of U.P. and others, reported in 2009 (10) ADJ Pg. 654 Paras 9 to 12, quoted below:-
"9:.....A perusal of the said two Division Bench judgements in the case of Vishwajeet Singh (Supra) and Smt Pholpati (Supra) indicate that the applicability of the roster can be implemented wherever there are five or more than five posts to be filled up where reservation is being claimed under the Uttar Pradesh Public Services ( Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act 1994.
The said decision clearly lays down : that there has to be existence of more than five posts for the purpose of applying roster otherwise it would violate the law in Indira Sahani's Case as reservation will then be in excess of 50%. Having perused the ratio of the two 2 division Bench judgements it appears that the same has not been noticed in the decision in Mahendra Kumar Gond's case. The decision in the case of Dr. Vishwajeet was rendered on 20th April 09 whereas decision in the case of Pholpati Devi was rendered prior to that.
10:-Both these decisions appear to have escaped the notice of the court and the applicability of the roster in the situation where there are only three posts available .
11:-In this view of the ratio laid down in the two judgements of Dr Vishwajeet Singh and Smt. Pholpati Devi(Supra) there appears to be a contradictory position indicated in Mahendra Kumar Gond's case and as such the same deserves to be resolved by reference to a larger Bench.
12:-Accordingly, in exercise of the powers conferred under Chapter 5 Rule 6 of the Allahabad High Court Rules, the following questions deserve to be referred to a larger Bench, in view of the position indicated above.
1.Whether the roster in respect of reservation can be applied with regard to the promotion in respect of class class III posts in Intermediate College, where the number of posts is less than five?
2.Whether there is a conflict between the ratio of the two Division Bench judgements of Mahendra Kumar Gond ( Supra) and Dr.Vishwajeet Singh (Supra) as referred to herein above, and if so, then which of the decisions lay down the law correctly ?
The reference has to be answered in the context of the provisions contained in U.P. Act No. 4 of 1994 read with the Government Orders dealt with hereinafter and Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921, in order to specify as to how and in what circumstances, the roster for implementing the rule of reservation has to be applied.3
It is undisputed that Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act 1994 (hereinafter referred to as the U.P. Act No. 4 of 1994) applies in relation to appointment on posts in Institution recognized and governed by the 1921 Act receiving grant-in-aid from State funds. The admitted position in the case at hand is in relation to such a post for which aid is admissible and is under receipt of such grant as defined in Section 2(c)(iv) and (v) of Act. Members of the Schedule Caste are entitled for the benefit of reservation against 21% of the posts.
The specific case which has given rise to the reference in both the cases that are before us, namely Writ Petition No. 51617 of 2009, Heera Lal Vs. State of U.P. and Writ Petition No. 31716 of 2004, Satyavrat Nath and others Vs. State of U.P., is that the sanctioned strength of the post of clerks (Class III posts) are three, and in such a situation whether one of the posts could be offered to a candidate of the Scheduled Caste Category by way of reservation. The said three sanctioned posts form the total cadre strength in both the Institutions which are governed by the provisions of the 1921 Act and the Regulations framed thereunder. The Institutions where the claim is staked are privately managed and receiving grant-in-aid from State funds. The financial approval and sanction of the post in question and disbursement of salary to the employees is governed by the statutory provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act No. 24 of 1971.
Regulation 2 of Chapter III of the 1921 Act makes a provision through two sources of recruitment to the said cadre, fifty per cent by way of promotion and the rest by direct recruitment. The provision further clarifies that if the fraction is either exactly half or more than half in calculation of the percentage, then the same shall be read as one complete unit, and as in the instant cases where there are three posts, the fraction of 1.5 will be read as two and therefore two posts have to be filled up by way of promotion.
In the case of Heera Lal the claim is by way of promotion. Heera Lal being a Class IV employee has set up a challenge to the compassionate appointment of the respondent no. 6 in Writ Petition No. 51617 of 2009 on two grounds. Firstly that the post to filled by promotion could not be filled by appointing a 4 dependant of a deceased employee under the compassionate appointment Rules which is a source of direct recruitment, and secondly the petitioner was entitled to be given the benefit of reservation while considering promotion. The petition was entertained and the reference has been made keeping in view the ratio of the decision in the case of Mahendra Kumar Gond Vs. D.I.O.S. reported in 2009 (6) ADJ 674 and the view expressed by another Division Bench in relation to the applicability of the roster in the case of Dr. Vishwajit Singh Vs. State reported in 2009 U.P.L.B.E.C. (2) 1443 which in turn refers to another bench judgment in the case of Smt. Pholpati Devi Vs. Smt. Asha Jaiswal, reported in 2009 ADJ (2) Pg. 90.
The second case which is before us, Satyvrat Nath Vs. State, Writ Petition No. 31716 of 2004 is a matter where the petitioner claims to have been appointed against a leave vacancy of one of the clerks of the Institution in the year 1999. His further claim is that the vacancy subsequently became substantively vacant, with the retirement of the incumbent who was on leave, in the year 2005 and therefore, he should be granted approval on the said post as he had been selected by a duly constituted Selection Committee. During the pendency of the writ petition an amendment application has been moved challenging the fresh selection and appointment of the respondent no. 6 Sachin Kumar who has been offered appointment as a scheduled caste candidate. It is contended that he could not have been given the said benefit as no reservation could have been applied amongst the three posts sanctioned in the Institution.
In the aforesaid background the reference focuses on the issue relating to the mathematics and calculation of the applicability of the rule of reservation for extending benefit to scheduled caste candidates by applying the roster. The two cases therefore are confined to the applicability of the rule of reservation for scheduled castes and the roster to be applied in an Institution where the sanctioned strength of the cadre is three. The first in relation to promotion, whereas the second is of direct recruitment.
It has been pointed out by the learned counsel at the bar that a Special Leave Petition against the decision in the case of Dr. Vishwajeet Singh is pending before the apex Court. It is also stated that no interim orders have been passed therein so far. Accordingly, we have proceeded to hear the matter noticing the 5 same.
We have been assisted by Sri R.C. Dwivedi and Sri Lalji Pandey for the private parties and Sri Jaydeep Mathur learned Additional Advocate General assisted by Sri M.C. Chaturvedi learned Chief Standing Counsel at Allahabad and Sri L.P. Gupta learned Chief Standing Counsel at Lucknow for the State.
The main plank of the argument on behalf of those opposing the application of the roster, rests on the ratio of the Division Bench decision in the case of Dr. Vishwajeet Singh (supra), contending that there is no occasion for the applicability of the rule of reservation with the help of any roster for scheduled caste candidates, as the percentage of reservation for scheduled castes which is 21%, envisages the existence of a minimum of total number of five posts in the cadre strength for calculating and applying the said percentage. It is urged by them that 21% can be calculated only if there are a minimum number of five posts for offering 21% reservation as it is only then that one post can be reserved for scheduled castes. It is submitted that if the posts are less than five, as in the present case which is three, the mathematical percentage as prescribed i.e. 21% is beyond calculation and there cannot be a fraction available amongst three posts for applying the said percentage.
Further, in view of the decision of the apex court in the case of R.S. Garg Vs. State, reported in (2006) Vol. 6 SCC Pg. 430, any such calculation by imaginatively applying the roster would be contrary to the constitutional mandate of Articles 14 and 16 of the Constitution of India. It is submitted that whether the post is to be filled by promotion or by direct recruitment, being the two sources of recruitment, the aforesaid rule of reservation for offering 21 per cent of the posts cannot be pressed into service as the posts are less than five. Certain other judgments have also been cited which shall be discussed herein after.
Replying to the aforesaid submissions Sri Jaydeep Mathur learned Additional Advocate General placed before the Court, the Government Order dated 8th March, 1973, the Government Order dated 18th December, 1990 and the provisions of U.P. Act No. 4 of 1994 and contended that one of the posts, out of three, has to be offered to a reserved category candidate, and bereft of the percentage of reservation as 6 prescribed, the Government Order dated 8th March, 1973 by its own operation extends the said benefit and is also saved under Section 3 (7) of the 1994 Act. He submits that the provisions of the said Government Order are in relation to reservation and are saved by virtue of provisions aforesaid being in addition to the reservation provided under the Act. He submits that keeping in view the running account formula the roster can be applied even amongst three posts and the benefit of promotion in reservation is available under the Government Order dated 18th December, 1990. Sri Mathur contends that in view of the aforesaid position there is apparently no conflict between the decisions in the case of Mahendra Kumar Gond and Dr. Vishwajeet Singh (supra). He submits that the ratio in the case of Mahendra Kumar Gond can be saved by applying the aforesaid Government Order of 8th March, 1973 and which was not the issue in the case of Dr. Vishwajeet Singh. He submits that in Dr. Vishwajeet Singh's case the matter related to appointment on the post of Lecturers in Degree Colleges and the calculation made therein was in accordance with the rules that were applicable for the purpose of appointment of such Lecturers and therefore, in the absence of any such real conflict no such dispute requires to be resolved. He submits that as a matter of fact it is the rule of per incuriam which can be said to be at best attracted inasmuch as the referring order indicates that the decision in the cases of Dr. Vishwajeet Singh and Smt. Pholpati Devi escaped the notice of the Court while proceeding to decide the case of Mahendra Kumar Gaur.
While advancing his submission in respect of question no. 1, Sri Mathur took us through the details of the clauses contained in the Government Order dated 8th March, 1973 and submitted that even where the posts are less than five the rule of reservation for giving benefit of reservation to a scheduled caste candidate is available. He therefore submits that the reference be answered accordingly keeping in view the constitutional mandate for the benefit of reservation. The contention is that the very object of a beneficial piece of legislation would be frustrated if the mathematical calculation as suggested is accepted. He submits that the enabling mandate of the Constitution under Article 16(4-A) in particular cannot be bound or circumscribed by any tool of interpretation, and that the provisions of U.P. Act No. 4 of 1994 do not prohibit the benefit of reservation even if the numerical figure is less than five.
7Before proceeding to delve into the substantive issue of the mathematical calculation in relation to the applicability of the roster, it would be appropriate to clarify the position in relation to the submission made by Sri Mathur on the second question regarding the conflict between the two Division Bench judgments in the case of Mahendra Kumar Gond and the decision in the case of Dr. Vishwajeet Singh which has approved the reasoning given in the case of Pholpati Devi.
The conflict which was pointed out in the referring order was in effect to resolve the method of calculation for applying the rule of reservation where the cadre strength of the post in question is less than five. The referring order clearly recites that there is a contradictory position presumed in Mahendra Kumar Gond's case without noticing the judgment in the case of Dr. Vishwajeet Singh (supra) and the case of Pholpati Devi Vs. Asha Jaiswal (supra). In essence this court noticed the aforesaid anomaly and therefore it is in the aforesaid sense that the reference was made to resolve the said "conflict". The same has arisen on account of the position as indicated above and Sri Mathur is therefore right in his submission that the decision in the case of Mahendra Kumar Gond to that extent is per incuriam.
In our opinion, it was therefore necessary for the learned Single Judge to have referred the matter to a larger bench for an authoritative pronouncement as to the correct position of law. This was also necessary as the learned Single Judge was bound by the Division Bench judgment in the case of Mahendra Kumar Gond (supra) which was directly in issue in relation to a Class III post of an Intermediate College governed by the 1921 Act and also arose out of a claim against one post out of the total cadre strength of three posts in the Institution. The learned Single Judge, therefore, faced with the aforesaid Division Bench judgment in the present cases as well, was obliged to refer the matter after noticing the two earlier Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi. This is in consonance with the law enunciated by our Full Bench in the case of Rana Pratap Singh Vs. State of U.P., reported in (1995) Allahabad Civil Journal 200 and also in view of the latest Supreme Court decision in the case of Official Liquidator Vs. Dayanand, reported in (2008) 10 SCC Pg.1. Without delving on this any further, we may add that the answer to the first question would either way resolve the issue, and as such question no. 2 stands 8 answered accordingly.
Coming to the substantive part of the issue as referred to in question no. 1, Bertrand Russel (1872-1970) in his work Mysticism and Logic (1918) opined that mathematics could be defined as the subject in which we never know what we are talking about, nor whether what we are saying is true. This impression about the subject should not disillusion us for we have to specify the calculation, and clarify the discrepancy in the logic, or the absence of consideration of such logic in the case of Mahendra Kumar Gond in the light of the decisions of the earlier Division Benches. This is necessary in order to clarify the law which would help in deciding a large number of such pending matters on this issue and also for future guidance in relation to such appointments. This will obviously reduce litigation, the consequence would be what Stephen Hawkins has said in "A brief History of Time (1988)" that "someone told me that each equation included in the book would halve the sales".
The magnum opus on the issue of reservation by our courts is the case of Indira Sawhney Vs. Union of India, reported in 1992 Supplement (3) SCC Pg. 217. It has been categorically laid down that overall reservation should not be allowed to exceed 50%.
In the present case, the rule of reservation as contained in U.P. Act No.4 of 1994 if applied then out of three posts, if one of the posts is given to the scheduled caste category, the reservation would exceed 21% and reach 33%. It would, therefore, violate the maximum permissible limit as contained in the statutory provision. The Government Order dated 8th March, 1973 can be saved only to the extent of its applicability which in our opinion does not mandate the reservation of one post even if the total number of posts is less than five. Clause (2) of the said Government order is in relation to the availability of vacancies to be filled up by way of promotion, where it is provided that if in the year of recruitment, the number of vacancies available under the reserved category or the category of carry forward vacancies is only two, then in that event one of the vacancies can be treated to be of the reserved category. If only one vacancy is available in the year of recruitment in the said category then the same shall be treated as unreserved. The relevant clause is quoted below:-
9;fn vkjf{akr fjfDr;ksa ds fy, p;u ds volj ij vuqlwfpr tkfr vkSj vuqlwfpr tu tkfr ds vH;fFkZ;ksa esa ls mi;qDr vH;FkhZ i;kZIr la[;k esa ugha feyrs vkSj ,slh fjfDr;ksa dks dk;Z n`f"V ls Hkjk tkuk vko';d gh le>k tkrk gS rks muesa dsoy rnFkZ vk/kkj ij vLFkk;h fu;qfDr;ka dj yh tk;a rFk fu;qfDr ds vkns'kksa esa ;g Li"V Hkh dj fn;k tk;A lkFk gh mu fjfDr;ksa dks vuqorhZ volj ij vxzsuhr@ dSjh QkjoMZ fd;k tkuk pkfg, ij izfrca/k ;g gksxk fd HkrhZ ds o"kksZ esa vkjf{kr fjfDr;ka rFkk vxzsuhfr vkjf{kr fjfDr;ka dqy feykdj fjfDr;ksa dh dqy la[;k ds 45 izfr'kr ls vf/kd ugha gksuk pkfg,A ;fn fjfDr;ka dsoy nks gh gksa] rks mlesa ls ,d dks vkjf{kr fjDr le>k tk ldrk gSA fdUrq ;fn fjfDr dsoy ,d gh gks rks mls vjf{kr @ vu fjtCMZ le>uk pkfg,A 45 izfr'kr ls vf/kd @ ljIyl dks p;u ds vuqorhZ volj ij vxzsuhr fd;k tk;sxk fdUrq 'krZ ;g gS fd vxzsuhr dh x;h fo'ks"k fjfDr;ka vuqlfw pr tkfr;ksa vkSj tu tkfr;ksa ds lac/a k esa dze'k% nks o"kksZ vkSj ikap o"kksZa ls vf/kd iqjkuh gksus ds dkj.k dky&ckf/kr @ Vkbe CkkMZ u gksus ikosaA Having carefully examined the said Government Order dated 8th March, 1973 we do not find any such provision for applying the rule of reservation for schedule caste in cases where the total cadre strength is less than five. The Government Order does not enunciate any such principle which can be treated to be in addition to the prescription of the outer limit of percentage of reservation for scheduled castes as provided for in the 1994 Act. The said Government Order only explains the status of the vacancies if the number of vacancies is only two.
The issue relating to the distinction between the words post, vacancy and cadre strength has been clearly explained in the decision of R.K. Sabharwal Vs. State of Punjab, reported in (1995) 2 SCC 745. Paragraph 6 is quoted herein below:
"The expressions 'posts' 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 reservation has to be worked out in relation to the number of posts which form 10 the cadre-strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation."
The position was further explained in the case of Prabhash Chand Jain Vs. State of Haryana & others, reported in (1996) 8 SCC 105. Paragraph 8 is quoted herein below:
"The last submission made by the learned counsel for the appellants and the respondent-State was that the recent judgment dated 10.2.1995 of the Constitution Bench in R.K. Sabharwal Vs. State of Punjab supports their contention, inasmuch as, according to them, as per the said circular, the reservation policy is to be applied to the posts and not to the vacancies. We find no such observation made in the said judgment. In fact, in the very beginning, the Court has stated that the expressions 'posts' and 'vacancies' are often used in the executive instructions providing for reservation, problematically. The Court has then gone on to explain that the word 'post' means the position to which the person is to be appointed. The vacancy means a non-occupied post or office. The plain meaning of the two expressions makes it clear that there must be posts to enable the vacancies to occur. The cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation 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. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in post is achieved. The roster point in a cadre can be filled in only when the vacancies occur and not otherwise. Hence the observations made in the said judgment relating to the percentage of reservation in posts has to be understood in that sense. It is not the contention of the respondent-employees belonging to the reserved category that the percentage of reservation is to be calculated dehors the number of posts. However, while filling the posts, it is the vacancies which have to be taken into consideration and these vacancies have to be filled in, according to the roster points. That is precisely what is sought to be done in the present case by the circular of 9.2.1979".
The decision in R.K. Sabharwal's case is a five judges pronouncement which still holds the field. The question of 11 giving the benefit of reservation in excess of the percentage of quota of reservation has been put to rest by the decision in the case of R.S. Garg Vs. State of U.P., reported in (2006) 6 SCC
430. Paragraph 40 which is quoted herein below:
"We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for the Scheduled Tribe (sic Caste) candidates by the State itself. It, thus, cannot exceed the quota. If 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".
The decision of the Full Bench of the Bombay High Court in the case of New English High School Association, Nagpur & another Vs. Baldev & another, reported in (2008) 5 Education and Service Cases 3110 need not be gone into as in view of the decisions of the Apex Court referred to herein above, the rule of reservation, in our opinion, cannot be pressed into service on the facts of the present reference.
However, even assuming that one such post can exist by applying the rule of necessity and the principle of rounding off, the rule of reservation of 21% in less than five posts cannot be implemented. Law is also acknowledged as a technical dress. The prescription of law therefore cannot be designed through an interpretive tool to make it look upside down. Neither the Government Order dated 8th March, 1973 or the subsequent orders nor the provisions of U.P. Act No. 4 of 1994 project and support any such proposition as advanced on behalf of the State. The mathematical calculation prohibits anything further, and so do the legal principles as noticed above. The game of digits and numbers cannot be taken further even by employing the intuitive mind of the great mathematician Ramanujam nor can such a view be made possible through the best of forensic legacy of law.
The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the scheduled caste category. A numerically less strength figure, below the required number, would therefore 12 not allow the roster to be operated, as a roster is there to implement the rule of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given then the same would amount to a non-constructive existence of a miscalculated proof in the words of the famous German Mathematician Leopold Kronecker (1823-91). In legal terms this would violate the mandate of the constitution and in cases of promotion it would not be in conformity with the same.
It is to be remembered that Article 16(4-A) is an enabling provision and in view of the said interpretation the same cannot be construed to confer an absolute right of reservation even beyond the limits prescribed under the law framed by the legislature, namely U.P. Act No. 4 of 1994. We may clarify that the roster loses its capability of application where the rule of reservation itself cannot be pressed into service keeping in view the numerical strength of the cadre in such matters as in the present case which is less than five. To do so would be a miscalculation in raw mathematics and the fine tenets of law. The argument of the State if accepted would result in unconstitutionality and an illogical acceptance of the rule of reservation. This would also satisfy the test of reasonableness as arithmetical calculations are also one of the logical foundations for reason. The calculation cannot be violated as explained above and if that is done then it would be unreasonable as well as unconstitutional.
The statutory position as contained in U.P. Act No. 4 of 1994 completely takes care of the situation and the impact of the maximum reservation percentage provided for therein cannot be nullified through an interpretation which is neither supported by any Government Order, Rule or judicial pronouncement. The case of Mahendra Kumar Gond (supra) did not decide the question which has been raised in relation to the calculation of the minimum number of posts to be available for applying the rule of reservation.
In view of the aforesaid conclusions, we find ourselves in full agreement with the view taken in Dr. Vishwajeet Singh's 13 case and we hold that the decision in the case of Mahendra Kumar Gond (supra) is per incuriam and even otherwise does not apply the law correctly. We further reject the contention of the State in relation to the issue involved and the submissions raised for the applicability of the Government Order dated 8th March, 1973.
There may be cases where there is a rule making provision for different sources of recruitment within the same cadre, then reservation has to be applied to the posts available for being filled up in accordance with the source of recruitment. This issue may arise in the context where a candidate is not available for filling up the post by way of promotion and the same has to be diverted to be filled up by direct recruitment. Such a situation will arrive in cases where the number of posts may be five or more so as to make the rule of reservation applicable. Taking for instance were there are say 8 posts in a cadre and the rule is, as presently involved, namely that 50% posts have to be filled up by way of promotion, in that event four posts have to be filled up by promotion and four by direct recruitment. The rule of reservation for appointment by way of promotion is availably only to scheduled castes in the State of U.P. and no such rule is available for other backward categories. They are entitled to the benefit of reservation only in the process of direct recruitment. In the example given above where four posts out of eight are to be filled up by direct recruitment one post will have to be given to the other backward category keeping in view the 27% mandate of reservation in favour of such category under the 1994 Act. Against four posts of promotion quota, reservation to a scheduled caste category cannot be granted as there as to be a minimum of five posts for applying the 21% reservation for promotion. In a given situation where no other candidate of any category is available for promotion against the four posts, then such a vacancy to be filled up by promotion may have to be carried over for direct recruitment. This would bring about a change of strength in the source of recruitment thus fluctuating the strength of the post available by direct recruitment. A scheduled caste candidate would therefore, get the benefit of reservation if the cadre strength is increased to five for direct recruitment, even though the same candidate would not get the benefit of reservation if the promotion quota of 50% is adhered to. It would be appropriate to point out that taking a case where there are five posts for being filled up by promotion and five by direct recruitment in the cadre then in such an event the rule of 14 reservation to the extent of 21% in both the sources can be conveniently made applicable without disturbing the ratio in either of the sources.
In such a situation wherever the issue of reservation arises one will have to keep in mind the strength of the cadre as also the source of recruitment which is governed by a statutory rule. The rule providing for the source of recruitment therefore will have to be balanced in such situations. The fluctuating strength of a cadre will therefore have to be kept in mind for applying the rule of reservation.
In view of the reasons in support of the conclusions drawn herein above our answer to the questions posed are as follows:-
1. Question No. 1 is answered in the negative holding that either in cases of promotion or direct recruitment, the rule of reservation providing for 21% reservation to scheduled castes under U.P. Act No. 4 of 1994 as applicable to aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five.
2. The decision in the case of Mahendra Kumar Gond Vs. State of U.P. reported in 2009 (6) ADJ Pg. 674 having been rendered without taking notice of the two Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi (supra) is not approved.
The Judgments of Dr. Vishwajeet Singh is hereby approved as laying down the law correctly on the issue raised herein.
Let the papers be now transmitted before the concerned bench for proceeding to decide the matter in accordance with the pronouncement made herein above.
9th July, 2010 Sahu