Document Fragment View

Matching Fragments

5. According to the petitioner, the Assistant Director who was at serial No. 1 In the seniority list, retired long back, therefore. Vijai Kumar, Moijuddin. Bhuwan Chandra Pandey and Arun Kumar Agrawal who were senior to the petitioner, have already been promoted, thus the petitioner was the senlormost Assistant Director, when selection for the post of Deputy Director Factories was made.

6. Sri O. P. Bharti respondent No. 3 was appointed on the post of Assistant Director of Factories vide order dated 17.1.1987 by the State Government directly on ad hoc basis. He joined on the said post on 29.1.1987. By means of the order dated 15.11.92 respondent No. 3 was appointed regularly to the post of Assistant Director of Factories by the State Government. Sri O. P. Bharti respondent No. 3 was promoted to the post of Deputy Director of Factories (Administration) regularly by the State Government vide order dated 25.2.1997, which has been impugned in the writ petition on the ground that there were six posts of Deputy Director of Factories, being a member belonging to Scheduled Caste. It has been asserted in the counter-affidavit, that the respondent No. 3 could be appointed on the sixth post/vacancy, on the basts of roaster. Even after Sri O. P. Bharti took over charge on the post of Deputy Director of Factories on 26.4.97. by means of the interim order passed by this Court, he was restrained from working on the said poat.

23. In S. P. Shiv Prasad Pipal v. Union of India and others, JT 1998 (3) SC 216. Hon'ble Supreme Court held that group/merger of the post is permissible and it is the policy decision and is not liable to be challenged and the objection which was taken in that regard, was not tenable.

24. In view of the aforesaid discussion, the objection of the petitioner that the post of Deputy Director of Factories (Engineering) could not have been clubbed or taken, into consideration for the purposes of promotion, is misconceived. According to the own showing of the petitioner if the post of Deputy Director of Factories (Engineering) Is taken into consideration, then there shall be six posts of Deputy Director of Factories (Administration). The Government of U. P. vide its order dated 20.7.1992 transferred the post of Deputy Director of Factories (Engineering) to Agra against which Shri Arun Kumar Agrawal was promoted to the post of Deputy Director of Factories (Engineering) and was transferred to Agra. The State of U. P. further vide G. O. dated 29.10.1994 attached the post of Deputy Director of Factories (Engineering) from Agra to Ghaziabad against which Shrl Ghanshyam Singh was transferred and posted, that is to say, against the post of Deputy Director of Factories (Engineering) vide Government Order dated 19.12,1994. It is thus evident that the post of Deputy Director of Factories (Administration) and Deputy Director of Factories (Engineering) are interchangeable and transferable and are in the same cadre. Shrl Ghanshyam Singh, a Scheduled Caste candidate, was working on the post of Deputy Director of Factories (Engineering) and not against the post of Deputy Director of Factories (Administration) with the result no reserved category candidate was working on the post of Deputy Director of Factories (Administration). Sri O. P. Bharti was promoted against 6th post of Deputy Director of Factories including the post of Deputy Director of Factories (Engineering), which a cadre post under Scheduled Caste quota as it falls on point No. 6 of roaster. Hon'ble Supreme Court in R. K. Sabharawal's case, JT 1995 (2) SC 351, has been pleased to hold that the roaster has to be applied to its roaster point and when suitable candidate is not available, the reserved category vacancy has to be carried forward.

25. In State of U. P. v. Dina Nath Shukla, JT 1997 (2) SC 467, Hon'ble Supreme Court held that where there is a single post in each faculty. It should be clubbed and roaster has to be applied. The fusion of the post is constitutional and permissible. Hon'ble Supreme Court upheld the roaster.

26. In Ashok Kumar Gupta v. State of U. P. and another. JT 1997 (4} SC 251: Post Graduate Institute of Medical Education and Research etc. v. K. L. Narasimhan and another. JT 1997 (5) SC 313 ; Union of India and others v. R. Ayyappan, JT 1998 (5) SC 346 : Union of India and another v. Madhav, JT 1996 (9) SC 320 ; Union of India and others v. Brij Lal Thakur, JT 1997 (4) SC 195. Hon'ble Supreme Court has upheld the fusion of the post, reservation roaster and promotion on the single cadre post by rotation through roaster point. The reservation to a single post is permissible according to roaster. But. if there is no roaster then the promotion cannot be made on a single post. The ratio of Hon'ble Supreme Court appears to be is that if on a single post in the same pay scale, the rule of roaster has been applied by the Government and the roaster point has to be filled up by the Government : such a rule of roaster is not violatlve of Article 16(1) of the Constitution.

27. Undoubtedly, applicability of the reservation is applicable to the post belonging to a particular cadre. In the present case, the post of Deputy Director of Factories (Engineering) is of the same cadre and, therefore, the same can be clubbed together for implementation of roaster. The reservation is permissible in the matter of promotion where the post is more than one. In the present case, the post of Deputy Director of Factories were more than one, that is to say. the six in number. The petitioner has not assailed the Reservation Act and the roaster. Sri O. P. Bhartl respondent No. 3 has been promoted against sixth post of Deputy Director of Factories and the same Is permissible. It is not a case where the posts of different cadre have been clubbed together. The petitioner belongs to general category candidate, while respondent No. 3 has been promoted to the post of Deputy Director of Factories under the reserved category quota. None of the members belonging to reserved category quota has challenged the promotion of respondent No. 3.