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
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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.
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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
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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
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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
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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.
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Before 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
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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:-
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;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
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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
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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
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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
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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
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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