{"id":45651,"date":"2010-07-09T00:00:00","date_gmt":"2010-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/heera-lal-vs-state-of-u-p-others-on-9-july-2010"},"modified":"2017-06-10T21:00:07","modified_gmt":"2017-06-10T15:30:07","slug":"heera-lal-vs-state-of-u-p-others-on-9-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/heera-lal-vs-state-of-u-p-others-on-9-july-2010","title":{"rendered":"Heera Lal vs State Of U.P. & Others on 9 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Heera Lal vs State Of U.P. & Others on 9 July, 2010<\/div>\n
                                                                 1\n\n                                                      Reserved\n\n\n             Civil Misc. Writ Petition No. 51617 of 2009\n\n            Heera Lal    Vs.        State of U.P. and others\n                         Connected with\n            Civil Misc. Writ Petition No. 31716 of 2004\n            Satya Brat Nath Vs. State of U.P. and others\n                                  -----------\n\nHon'ble Ashok Bhushan, J.\n<\/pre>\n
Hon’ble Arun Tandon, J.\n<\/p>\n
Hon’ble A.P. Sahi, J.\n<\/p>\n
      This reference has been made for an authoritative
\npronouncement on the issue of applying the rule of reservation
\nfor schedule caste candidates in aided educational institutions
\n(High School & Intermediate) in promotion and direct
\nrecruitment against Class III posts (clerical grade) to the extent
\nof 21% as provided for under the statute and the application of
\nthe roster through a mathematical calculation integrated with
\nlegal implications where the number of posts in a sanctioned
\ncadre is less than five.\n<\/p>\n
      It entails an adjudication on the questions posed by one
\nof us (Hon’ble A.P.Sahi, J.) vide order dated 7th October, 2009
\npassed in Heera Lal Vs. State of U.P. and others, reported in
\n2009 (10) ADJ Pg. 654 Paras 9 to 12, quoted below:-\n<\/p>\n
“9:…..A perusal of the said two Division Bench
\njudgements in the case of Vishwajeet Singh (Supra)
\nand Smt Pholpati (Supra) indicate that the
\napplicability of the roster can be implemented
\nwherever there are five or more than five posts to be
\nfilled up where reservation is being claimed under
\nthe Uttar Pradesh Public Services ( Reservation for
\nScheduled Castes, Scheduled Tribes and other
\nBackward Classes) Act 1994.\n<\/p>\n
The said decision clearly lays down : that there has to
\nbe existence of more than five posts for the purpose of
\napplying roster otherwise it would violate the law in
\nIndira Sahani’s Case as reservation will then be in
\nexcess of 50%. Having perused the ratio of the two
\n                                                            2<\/span><\/p>\n
division Bench judgements it appears that the same
\nhas not been noticed in the decision in Mahendra
\nKumar Gond’s case. The decision in the case of Dr.
\nVishwajeet was rendered on 20th April 09 whereas
\ndecision in the case of Pholpati Devi was rendered
\nprior to that.\n<\/p>\n
10:-Both these decisions appear to have escaped the
\nnotice of the court and the applicability of the roster
\nin the situation where there are only three posts
\navailable
\n                           .\n<\/p>\n
11:-In this view of the ratio laid down in the two
\njudgements of Dr Vishwajeet Singh and Smt. Pholpati
\nDevi(Supra) there appears to be a contradictory
\nposition indicated in Mahendra Kumar Gond’s case
\nand as such the same deserves to be resolved by
\nreference to a larger Bench.\n<\/p>\n
12:-Accordingly, in exercise of the powers conferred
\nunder Chapter 5 Rule 6 of the Allahabad High Court
\nRules, the following questions deserve to be referred
\nto a larger Bench, in view of the position indicated
\nabove.\n<\/p>\n
1.Whether the roster in respect of reservation can be
\napplied with regard to the promotion in respect of
\nclass class III posts in Intermediate College, where
\nthe number of posts is less than five?\n<\/p>\n
2.Whether there is a conflict between the ratio of the
\ntwo Division Bench judgements of Mahendra Kumar
\nGond ( Supra) and Dr.Vishwajeet Singh (Supra) as
\nreferred to herein above, and if so, then which of the
\ndecisions lay down the law correctly ?\n<\/p>\n
      The reference has to be answered in the context of the
\nprovisions contained in U.P. Act No. 4 of 1994 read with the
\nGovernment Orders dealt with hereinafter and Chapter III of
\nthe Regulations framed under the U.P. Intermediate Education
\nAct, 1921, in order to specify as to how and in what
\ncircumstances, the roster for implementing the rule of
\nreservation has to be applied.\n<\/p>\n
                                                                   3<\/span><\/p>\n
      It is undisputed that Uttar Pradesh Public Services
\n(Reservation for Scheduled Castes, Scheduled Tribes and other
\nBackward Classes) Act 1994 (hereinafter referred to as the U.P.
\nAct No. 4 of 1994) applies in relation to appointment on posts
\nin Institution recognized and governed by the 1921 Act
\nreceiving grant-in-aid from State funds. The admitted position
\nin the case at hand is in relation to such a post for which aid is
\nadmissible and is under receipt of such grant as defined in
\nSection 2(c)(iv) and (v) of Act. Members of the Schedule Caste
\nare entitled for the benefit of reservation against 21% of the
\nposts.\n<\/p>\n
      The specific case which has given rise to the reference in
\nboth the cases that are before us, namely Writ Petition No.
\n51617 of 2009, Heera Lal Vs. State of U.P. and Writ Petition No.
\n31716 of 2004, Satyavrat Nath and others Vs. State of U.P., is
\nthat the sanctioned strength of the post of clerks (Class III
\nposts) are three, and in such a situation whether one of the
\nposts could be offered to a candidate of the Scheduled Caste
\nCategory by way of reservation. The said three sanctioned posts
\nform the total cadre strength in both the Institutions which are
\ngoverned by the provisions of the 1921 Act and the Regulations
\nframed thereunder. The Institutions where the claim is staked
\nare privately managed and receiving grant-in-aid from State
\nfunds. The financial approval and sanction of the post in
\nquestion and disbursement of salary to the employees is
\ngoverned by the statutory provisions of Uttar Pradesh High
\nSchool and Intermediate Colleges (Payment of Salaries of
\nTeachers and other Employees) Act No. 24 of 1971.\n<\/p>\n
      Regulation 2 of Chapter III of the 1921 Act makes a
\nprovision through two sources of recruitment to the said cadre,
\nfifty per cent by way of promotion and the rest by direct
\nrecruitment. The provision further clarifies that if the fraction is
\neither exactly half or more than half in calculation of the
\npercentage, then the same shall be read as one complete unit,
\nand as in the instant cases where there are three posts, the
\nfraction of 1.5 will be read as two and therefore two posts have
\nto be filled up by way of promotion.\n<\/p>\n
       In the case of Heera Lal the claim is by way of promotion.
\nHeera Lal being a Class IV employee has set up a challenge to
\nthe compassionate appointment of the respondent no. 6 in Writ
\nPetition No. 51617 of 2009 on two grounds. Firstly that the post
\nto filled by promotion could not be filled by appointing a
\n                                                                  4<\/span><\/p>\n
dependant of a deceased employee under the compassionate
\nappointment Rules which is a source of direct recruitment, and
\nsecondly the petitioner was entitled to be given the benefit of
\nreservation while considering promotion. The petition was
\nentertained and the reference has been made keeping in view
\nthe ratio of the decision in the case of Mahendra Kumar Gond
\nVs. D.I.O.S. reported in 2009 (6) ADJ 674 and the view
\nexpressed by another Division Bench in relation to the
\napplicability of the roster in the case of Dr. Vishwajit Singh Vs.
\nState reported in 2009 U.P.L.B.E.C. (2) 1443 which in turn
\nrefers to another bench judgment in the case of Smt. Pholpati
\nDevi Vs. Smt. Asha Jaiswal, reported in 2009 ADJ (2) Pg. 90.\n<\/p>\n
      The second case which is before us, Satyvrat Nath Vs.
\nState, Writ Petition No. 31716 of 2004 is a matter where the
\npetitioner claims to have been appointed against a leave
\nvacancy of one of the clerks of the Institution in the year 1999.
\nHis further claim is that the vacancy subsequently became
\nsubstantively vacant, with the retirement of the incumbent who
\nwas on leave, in the year 2005 and therefore, he should be
\ngranted approval on the said post as he had been selected by a
\nduly constituted Selection Committee. During the pendency of
\nthe writ petition an amendment application has been moved
\nchallenging the fresh selection and appointment of the
\nrespondent no. 6 Sachin Kumar who has been offered
\nappointment as a scheduled caste candidate. It is contended
\nthat he could not have been given the said benefit as no
\nreservation could have been applied amongst the three posts
\nsanctioned in the Institution.\n<\/p>\n
      In the aforesaid background the reference focuses on the
\nissue relating to the mathematics and calculation of the
\napplicability of the rule of reservation for extending benefit to
\nscheduled caste candidates by applying the roster. The two
\ncases therefore are confined to the applicability of the rule of
\nreservation for scheduled castes and the roster to be applied in
\nan Institution where the sanctioned strength of the cadre is
\nthree. The first in relation to promotion, whereas the second is
\nof direct recruitment.\n<\/p>\n
      It has been pointed out by the learned counsel at the bar
\nthat a Special Leave Petition against the decision in the case of
\nDr. Vishwajeet Singh is pending before the apex Court. It is also
\nstated that no interim orders have been passed therein so far.
\nAccordingly, we have proceeded to hear the matter noticing the
\n                                                                   5<\/span><\/p>\n
same.\n<\/p>\n
      We have been assisted by Sri R.C. Dwivedi and Sri Lalji
\nPandey for the private parties and Sri Jaydeep Mathur learned
\nAdditional Advocate General assisted by Sri M.C. Chaturvedi
\nlearned Chief Standing Counsel at Allahabad and Sri L.P. Gupta
\nlearned Chief Standing Counsel at Lucknow for the State.\n<\/p>\n
       The main plank of the argument on behalf of those
\nopposing the application of the roster, rests on the ratio of the
\nDivision Bench decision in the case of Dr. Vishwajeet Singh
\n(supra), contending that there is no occasion for the
\napplicability of the rule of reservation with the help of any
\nroster for scheduled caste candidates, as the percentage of
\nreservation for scheduled castes which is 21%, envisages the
\nexistence of a minimum of total number of five posts in the
\ncadre strength for calculating and applying the said percentage.
\nIt is urged by them that 21% can be calculated only if there are a
\nminimum number of five posts for offering 21% reservation as
\nit is only then that one post can be reserved for scheduled
\ncastes. It is submitted that if the posts are less than five, as in
\nthe present case which is three, the mathematical percentage as
\nprescribed i.e. 21% is beyond calculation and there cannot be a
\nfraction available amongst three posts for applying the said
\npercentage.\n<\/p>\n
      Further, in view of the decision of the apex court in the
\ncase of R.S. Garg Vs. State, reported in (2006) Vol. 6
\nSCC Pg. 430, any such calculation by imaginatively applying
\nthe roster would be contrary to the constitutional mandate of
\nArticles 14 and 16 of the Constitution of India. It is submitted
\nthat whether the post is to be filled by promotion or by direct
\nrecruitment, being the two sources of recruitment, the aforesaid
\nrule of reservation for offering 21 per cent of the posts cannot
\nbe pressed into service as the posts are less than five. Certain
\nother judgments have also been cited which shall be discussed
\nherein after.\n<\/p>\n
      Replying to the aforesaid submissions Sri Jaydeep
\nMathur learned Additional Advocate General placed before the
\nCourt, the Government Order dated 8th March, 1973, the
\nGovernment Order dated 18th December, 1990 and the
\nprovisions of U.P. Act No. 4 of 1994 and contended that one of
\nthe posts, out of three, has to be offered to a reserved category
\ncandidate, and bereft of the percentage of reservation as
\n                                                                  6<\/span><\/p>\n
prescribed, the Government Order dated 8th March, 1973 by its
\nown operation extends the said benefit and is also saved under
\nSection 3 (7) of the 1994 Act. He submits that the provisions of
\nthe said Government Order are in relation to reservation and
\nare saved by virtue of provisions aforesaid being in addition to
\nthe reservation provided under the Act. He submits that
\nkeeping in view the running account formula the roster can be
\napplied even amongst three posts and the benefit of promotion
\nin reservation is available under the Government Order dated
\n18th December, 1990. Sri Mathur contends that in view of the
\naforesaid position there is apparently no conflict between the
\ndecisions in the case of Mahendra Kumar Gond and Dr.
\nVishwajeet Singh (supra). He submits that the ratio in the case
\nof Mahendra Kumar Gond can be saved by applying the
\naforesaid Government Order of 8th March, 1973 and which was
\nnot the issue in the case of Dr. Vishwajeet Singh. He submits
\nthat in Dr. Vishwajeet Singh’s case the matter related to
\nappointment on the post of Lecturers in Degree Colleges and
\nthe calculation made therein was in accordance with the rules
\nthat were applicable for the purpose of appointment of such
\nLecturers and therefore, in the absence of any such real conflict
\nno such dispute requires to be resolved. He submits that as a
\nmatter of fact it is the rule of per incuriam which can be said to
\nbe at best attracted inasmuch as the referring order indicates
\nthat the decision in the cases of Dr. Vishwajeet Singh and Smt.
\nPholpati Devi escaped the notice of the Court while proceeding
\nto decide the case of Mahendra Kumar Gaur.\n<\/p>\n
       While advancing his submission in respect of question no.
\n1, Sri Mathur took us through the details of the clauses
\ncontained in the Government Order dated 8th March, 1973 and
\nsubmitted that even where the posts are less than five the rule
\nof reservation for giving benefit of reservation to a scheduled
\ncaste candidate is available. He therefore submits that the
\nreference be answered accordingly keeping in view the
\nconstitutional mandate for the benefit of reservation. The
\ncontention is that the very object of a beneficial piece of
\nlegislation would be frustrated if the mathematical calculation
\nas suggested is accepted. He submits that the enabling mandate
\nof the Constitution under Article 16(4-A) in particular cannot
\nbe bound or circumscribed by any tool of interpretation, and
\nthat the provisions of U.P. Act No. 4 of 1994 do not prohibit the
\nbenefit of reservation even if the numerical figure is less than
\nfive.\n<\/p>\n
                                                                   7<\/span><\/p>\n
      Before proceeding to delve into the substantive issue of
\nthe mathematical calculation in relation to the applicability of
\nthe roster, it would be appropriate to clarify the position in
\nrelation to the submission made by Sri Mathur on the second
\nquestion regarding the conflict between the two Division Bench
\njudgments in the case of Mahendra Kumar Gond and the
\ndecision in the case of Dr. Vishwajeet Singh which has
\napproved the reasoning given in the case of Pholpati Devi.\n<\/p>\n
      The conflict which was pointed out in the referring order
\nwas in effect to resolve the method of calculation for applying
\nthe rule of reservation where the cadre strength of the post in
\nquestion is less than five. The referring order clearly recites that
\nthere is a contradictory position presumed in Mahendra Kumar
\nGond’s case without noticing the judgment in the case of Dr.
\nVishwajeet Singh (supra) and the case of Pholpati Devi Vs. Asha
\nJaiswal (supra). In essence this court noticed the aforesaid
\nanomaly and therefore it is in the aforesaid sense that the
\nreference was made to resolve the said “conflict”. The same has
\narisen on account of the position as indicated above and Sri
\nMathur is therefore right in his submission that the decision in
\nthe case of Mahendra Kumar Gond to that extent is per
\nincuriam.\n<\/p>\n
      In our opinion, it was therefore necessary for the learned
\nSingle Judge to have referred the matter to a larger bench for
\nan authoritative pronouncement as to the correct position of
\nlaw. This was also necessary as the learned Single Judge was
\nbound by the Division Bench judgment in the case of Mahendra
\nKumar Gond (supra) which was directly in issue in relation to a
\nClass III post of an Intermediate College governed by the 1921
\nAct and also arose out of a claim against one post out of the
\ntotal cadre strength of three posts in the Institution. The
\nlearned Single Judge, therefore, faced with the aforesaid
\nDivision Bench judgment in the present cases as well, was
\nobliged to refer the matter after noticing the two earlier
\nDivision Bench judgments in the case of Dr. Vishwajeet Singh
\n(supra) and Smt. Pholpati Devi. This is in consonance with the
\nlaw enunciated by our Full Bench in the case of Rana Pratap
\nSingh Vs. State of U.P., reported in (1995) Allahabad Civil
\nJournal 200 and also in view of the latest Supreme Court
\ndecision in the case of Official Liquidator Vs. Dayanand,
\nreported in (2008) 10 SCC Pg.1. Without delving on this any
\nfurther, we may add that the answer to the first question would
\neither way resolve the issue, and as such question no. 2 stands
\n                                                                  8<\/span><\/p>\n
answered accordingly.\n<\/p>\n
       Coming to the substantive part of the issue as referred to
\nin question no. 1, Bertrand Russel (1872-1970) in his work
\nMysticism and Logic (1918) opined that mathematics could be
\ndefined as the subject in which we never know what we are
\ntalking about, nor whether what we are saying is true. This
\nimpression about the subject should not disillusion us for we
\nhave to specify the calculation, and clarify the discrepancy in
\nthe logic, or the absence of consideration of such logic in the
\ncase of Mahendra Kumar Gond in the light of the decisions of
\nthe earlier Division Benches. This is necessary in order to
\nclarify the law which would help in deciding a large number of
\nsuch pending matters on this issue and also for future guidance
\nin relation to such appointments. This will obviously reduce
\nlitigation, the consequence would be what Stephen Hawkins
\nhas said in “A brief History of Time (1988)” that “someone told
\nme that each equation included in the book would halve the
\nsales”.\n<\/p>\n
      The magnum opus on the issue of reservation by our
\ncourts is the case of Indira Sawhney Vs. Union of India,
\nreported in 1992 Supplement (3) SCC Pg. 217. It has
\nbeen categorically laid down that overall reservation should not
\nbe allowed to exceed 50%.\n<\/p>\n
      In the present case, the rule of reservation as contained in
\nU.P. Act No.4 of 1994 if applied then out of three posts, if one of
\nthe posts is given to the scheduled caste category, the
\nreservation would exceed 21% and reach 33%. It would,
\ntherefore, violate the maximum permissible limit as contained
\nin the statutory provision. The Government Order dated 8th
\nMarch, 1973 can be saved only to the extent of its applicability
\nwhich in our opinion does not mandate the reservation of one
\npost even if the total number of posts is less than five. Clause
\n(2) of the said Government order is in relation to the
\navailability of vacancies to be filled up by way of promotion,
\nwhere it is provided that if in the year of recruitment, the
\nnumber of vacancies available under the reserved category or
\nthe category of carry forward vacancies is only two, then in that
\nevent one of the vacancies can be treated to be of the reserved
\ncategory. If only one vacancy is available in the year of
\nrecruitment in the said category then the same shall be treated
\nas unreserved. The relevant clause is quoted below:-\n<\/p>\n
                                                                                    9<\/span><\/p>\n
          ;fn vkjf{akr fjfDr;ksa ds fy, p;u ds volj ij vuqlwfpr tkfr vkSj
\nvuqlwfpr tu tkfr ds vH;fFkZ;ksa esa ls mi;qDr vH;FkhZ i;kZIr la[;k esa ugha
\nfeyrs vkSj ,slh fjfDr;ksa dks dk;Z n`f”V ls Hkjk tkuk vko’;d gh le>k tkrk gS
\nrks muesa dsoy rnFkZ vk\/kkj ij vLFkk;h fu;qfDr;ka dj yh tk;a rFk fu;qfDr ds
\nvkns’kksa esa ;g Li”V Hkh dj fn;k tk;A lkFk gh mu fjfDr;ksa dks vuqorhZ volj
\nij vxzsuhr@ dSjh QkjoMZ fd;k tkuk pkfg, ij izfrca\/k ;g gksxk fd HkrhZ ds
\no”kksZ esa vkjf{kr fjfDr;ka rFkk vxzsuhfr vkjf{kr fjfDr;ka dqy feykdj fjfDr;ksa
\ndh dqy la[;k ds 45 izfr’kr ls vf\/kd ugha gksuk pkfg,A ;fn fjfDr;ka dsoy
\nnks gh gksa] rks mlesa ls ,d dks vkjf{kr fjDr le>k tk ldrk gSA fdUrq ;fn
\nfjfDr dsoy ,d gh gks rks mls vjf{kr @ vu fjtCMZ le>uk pkfg,A<\/p>\n
         45 izfr’kr ls vf\/kd @ ljIyl dks p;u ds vuqorhZ volj ij vxzsuhr
\nfd;k tk;sxk fdUrq ‘krZ ;g gS fd vxzsuhr dh x;h fo’ks”k fjfDr;ka vuqlfw pr
\ntkfr;ksa vkSj tu tkfr;ksa ds lac\/a k esa dze’k% nks o”kksZ vkSj ikap o”kksZa ls vf\/kd
\niqjkuh gksus ds dkj.k dky&ckf\/kr @ Vkbe CkkMZ u gksus ikosaA<\/p>\n
      Having carefully examined the said Government Order
\ndated 8th March, 1973 we do not find any such provision for
\napplying the rule of reservation for schedule caste in cases
\nwhere the total cadre strength is less than five. The Government
\nOrder does not enunciate any such principle which can be
\ntreated to be in addition to the prescription of the outer limit of
\npercentage of reservation for scheduled castes as provided for
\nin the 1994 Act. The said Government Order only explains the
\nstatus of the vacancies if the number of vacancies is only two.\n<\/p>\n
      The issue relating to the distinction between the words
\npost, vacancy and cadre strength has been clearly explained in
\nthe decision of R.K. Sabharwal Vs. State of Punjab, reported in
\n(1995) 2 SCC 745. Paragraph 6 is quoted herein below:\n<\/p>\n
      “The expressions ‘posts’ and ‘vacancies’, often used in the
\nexecutive instructions providing for reservations, are rather
\nproblematical. The word ‘post’ means an appointment, job,
\noffice or employment. A position to which a person is
\nappointed. ‘Vacancy’ means an unoccupied post or office. The
\nplain meaning of the two expressions make it clear that there
\nmust be a ‘post’ in existence to enable the ‘vacancy’ to occur.
\nThe cadre-strength is always measured by the number of
\nposts comprising the cadre. Right to be considered for
\nappointment can only be claimed in respect of a post in a
\ncadre. As a consequence the percentage of reservation has to
\nbe worked out in relation to the number of posts which form
\n                                                                 10<\/span><\/p>\n
the cadre-strength. The concept of ‘vacancy’ has no relevance
\nin operating the percentage of reservation.”\n<\/p>\n
     The position was further explained in the case of
\nPrabhash Chand Jain Vs. State of Haryana & others, reported in
\n(1996) 8 SCC 105. Paragraph 8 is quoted herein below:\n<\/p>\n
       “The last submission made by the learned counsel for the
\nappellants and the respondent-State was that the recent
\njudgment dated 10.2.1995 of the Constitution Bench in R.K.
\nSabharwal Vs. State of Punjab supports their contention,
\ninasmuch as, according to them, as per the said circular, the
\nreservation policy is to be applied to the posts and not to the
\nvacancies. We find no such observation made in the said
\njudgment. In fact, in the very beginning, the Court has stated
\nthat the expressions ‘posts’ and ‘vacancies’ are often used in
\nthe executive instructions providing for reservation,
\nproblematically. The Court has then gone on to explain that
\nthe word ‘post’ means the position to which the person is to be
\nappointed. The vacancy means a non-occupied post or office.
\nThe plain meaning of the two expressions makes it clear that
\nthere must be posts to enable the vacancies to occur. The cadre
\nstrength is always measured by the number of posts
\ncomprising the cadre and the right to be considered for
\nappointment can only be claimed in respect of a post in a
\ncadre. As a consequence, the percentage of reservation has to
\nbe worked out in relation to the number of posts which form
\nthe cadre strength. The concept of vacancy has no relevance in
\noperating the percentage of reservation. The Court has then
\nexplained that when all the roster points in the cadre are
\nfilled, the required percentage of reservation in post is
\nachieved. The roster point in a cadre can be filled in only when
\nthe vacancies occur and not otherwise. Hence the observations
\nmade in the said judgment relating to the percentage of
\nreservation in posts has to be understood in that sense. It is
\nnot the contention of the respondent-employees belonging to
\nthe reserved category that the percentage of reservation is to
\nbe calculated dehors the number of posts. However, while
\nfilling the posts, it is the vacancies which have to be taken into
\nconsideration and these vacancies have to be filled in,
\naccording to the roster points. That is precisely what is sought
\nto be done in the present case by the circular of 9.2.1979”.\n<\/p>\n
     The decision in R.K. Sabharwal’s case is a five judges
\npronouncement which still holds the field. The question of
\n                                                                 11<\/span><\/p>\n
giving the benefit of reservation in excess of the percentage of
\nquota of reservation has been put to rest by the decision in the
\ncase of R.S. Garg Vs. State of U.P., reported in (2006) 6 SCC\n<\/p>\n
430. Paragraph 40 which is quoted herein below:\n<\/p>\n
       “We are not concerned with the reasonableness or
\notherwise of the percentage of reservation. 21% of the posts
\nhave been reserved for the Scheduled Tribe (sic Caste)
\ncandidates by the State itself. It, thus, cannot exceed the quota.
\nIf is not disputed that in the event of any conflict between the
\npercentage of reservation and the roster, the former shall
\nprevail. Thus, in the peculiar facts and circumstances of this
\ncase, the roster to fill up the posts by reserved category
\ncandidates, after every four posts, in our considered opinion,
\ndoes not meet the constitutional requirements”.\n<\/p>\n
      The decision of the Full Bench of the Bombay High Court
\nin the case of New English High School Association, Nagpur &
\nanother Vs. Baldev & another, reported in (2008) 5 Education
\nand Service Cases 3110 need not be gone into as in view of the
\ndecisions of the Apex Court referred to herein above, the rule of
\nreservation, in our opinion, cannot be pressed into service on
\nthe facts of the present reference.\n<\/p>\n
      However, even assuming that one such post can exist by
\napplying the rule of necessity and the principle of rounding off,
\nthe rule of reservation of 21% in less than five posts cannot be
\nimplemented. Law is also acknowledged as a technical dress.
\nThe prescription of law therefore cannot be designed through
\nan interpretive tool to make it look upside down. Neither the
\nGovernment Order dated 8th March, 1973 or the subsequent
\norders nor the provisions of U.P. Act No. 4 of 1994 project and
\nsupport any such proposition as advanced on behalf of the
\nState. The mathematical calculation prohibits anything further,
\nand so do the legal principles as noticed above. The game of
\ndigits and numbers cannot be taken further even by employing
\nthe intuitive mind of the great mathematician Ramanujam nor
\ncan such a view be made possible through the best of forensic
\nlegacy of law.\n<\/p>\n
      The rule of roster and the concept of a running account of
\nthe roster therefore would commence only if there are five or
\nmore posts for extending the benefit of 21% reservation in
\nfavour of the scheduled caste category. A numerically less
\nstrength figure, below the required number, would therefore
\n                                                                12<\/span><\/p>\n
not allow the roster to be operated, as a roster is there to
\nimplement the rule of reservation and not a tool to create
\nreservation. As noticed in the judgments of the Apex Court that
\nin the event of any any conflict between the percentage of
\nreservation and the applicability of the roster, the former would
\nprevail. Thus, in no event can the percentage of reservation be
\ninflated or enhanced by the illusionary or imaginative
\napplication of the rule of roster. If such interpretation as
\nsuggested by the State is given then the same would amount to
\na non-constructive existence of a miscalculated proof in the
\nwords of the famous German Mathematician Leopold
\nKronecker (1823-91). In legal terms this would violate the
\nmandate of the constitution and in cases of promotion it would
\nnot be in conformity with the same.\n<\/p>\n
       It is to be remembered that Article 16(4-A) is an enabling
\nprovision and in view of the said interpretation the same cannot
\nbe construed to confer an absolute right of reservation even
\nbeyond the limits prescribed under the law framed by the
\nlegislature, namely U.P. Act No. 4 of 1994. We may clarify that
\nthe roster loses its capability of application where the rule of
\nreservation itself cannot be pressed into service keeping in view
\nthe numerical strength of the cadre in such matters as in the
\npresent case which is less than five. To do so would be a
\nmiscalculation in raw mathematics and the fine tenets of law.
\nThe argument of the State if accepted would result in
\nunconstitutionality and an illogical acceptance of the rule of
\nreservation. This would also satisfy the test of reasonableness
\nas arithmetical calculations are also one of the logical
\nfoundations for reason. The calculation cannot be violated as
\nexplained above and if that is done then it would be
\nunreasonable as well as unconstitutional.\n<\/p>\n
      The statutory position as contained in U.P. Act No. 4 of
\n1994 completely takes care of the situation and the impact of
\nthe maximum reservation percentage provided for therein
\ncannot be nullified through an interpretation which is neither
\nsupported by any Government Order, Rule or judicial
\npronouncement. The case of Mahendra Kumar Gond (supra)
\ndid not decide the question which has been raised in relation to
\nthe calculation of the minimum number of posts to be available
\nfor applying the rule of reservation.\n<\/p>\n
      In view of the aforesaid conclusions, we find ourselves in
\nfull agreement with the view taken in Dr. Vishwajeet Singh’s
\n                                                                 13<\/span><\/p>\n
case and we hold that the decision in the case of Mahendra
\nKumar Gond (supra) is per incuriam and even otherwise does
\nnot apply the law correctly. We further reject the contention of
\nthe State in relation to the issue involved and the submissions
\nraised for the applicability of the Government Order dated 8th
\nMarch, 1973.\n<\/p>\n
       There may be cases where there is a rule making
\nprovision for different sources of recruitment within the same
\ncadre, then reservation has to be applied to the posts available
\nfor being filled up in accordance with the source of recruitment.
\nThis issue may arise in the context where a candidate is not
\navailable for filling up the post by way of promotion and the
\nsame has to be diverted to be filled up by direct recruitment.
\nSuch a situation will arrive in cases where the number of posts
\nmay be five or more so as to make the rule of reservation
\napplicable. Taking for instance were there are say 8 posts in a
\ncadre and the rule is, as presently involved, namely that 50%
\nposts have to be filled up by way of promotion, in that event
\nfour posts have to be filled up by promotion and four by direct
\nrecruitment. The rule of reservation for appointment by way of
\npromotion is availably only to scheduled castes in the State of
\nU.P. and no such rule is available for other backward
\ncategories. They are entitled to the benefit of reservation only in
\nthe process of direct recruitment. In the example given above
\nwhere four posts out of eight are to be filled up by direct
\nrecruitment one post will have to be given to the other
\nbackward category keeping in view the 27% mandate of
\nreservation in favour of such category under the 1994 Act.
\nAgainst four posts of promotion quota, reservation to a
\nscheduled caste category cannot be granted as there as to be a
\nminimum of five posts for applying the 21% reservation for
\npromotion. In a given situation where no other candidate of any
\ncategory is available for promotion against the four posts, then
\nsuch a vacancy to be filled up by promotion may have to be
\ncarried over for direct recruitment. This would bring about a
\nchange of strength in the source of recruitment thus fluctuating
\nthe strength of the post available by direct recruitment. A
\nscheduled caste candidate would therefore, get the benefit of
\nreservation if the cadre strength is increased to five for direct
\nrecruitment, even though the same candidate would not get the
\nbenefit of reservation if the promotion quota of 50% is adhered
\nto. It would be appropriate to point out that taking a case where
\nthere are five posts for being filled up by promotion and five by
\ndirect recruitment in the cadre then in such an event the rule of
\n                                                                14<\/span><\/p>\n
reservation to the extent of 21% in both the sources can be
\nconveniently made applicable without disturbing the ratio in
\neither of the sources.\n<\/p>\n
      In such a situation wherever the issue of reservation
\narises one will have to keep in mind the strength of the cadre as
\nalso the source of recruitment which is governed by a statutory
\nrule. The rule providing for the source of recruitment therefore
\nwill have to be balanced in such situations. The fluctuating
\nstrength of a cadre will therefore have to be kept in mind for
\napplying the rule of reservation.\n<\/p>\n
      In view of the reasons in support of the conclusions
\ndrawn herein above our answer to the questions posed are as
\nfollows:-\n<\/p>\n
     1.    Question No. 1 is answered in the negative holding
\n     that either in cases of promotion or direct recruitment,
\n     the rule of reservation providing for 21% reservation to
\n     scheduled castes under U.P. Act No. 4 of 1994 as
\n     applicable to aided educational institutions cannot be
\n     pressed into service where the number of posts in the
\n     cadre is less than five.\n<\/p><\/blockquote>\n
     2.    The decision in the case of Mahendra Kumar Gond
\n     Vs. State of U.P. reported in 2009 (6) ADJ Pg. 674 having
\n     been rendered without taking notice of the two Division
\n     Bench judgments in the case of Dr. Vishwajeet Singh
\n     (supra) and Smt. Pholpati Devi (supra) is not approved.
\n     The Judgments of Dr. Vishwajeet Singh is hereby
\n     approved as laying down the law correctly on the issue
\n     raised herein.<\/p><\/blockquote>\n
      Let the papers be now transmitted before the concerned
\nbench for proceeding to decide the matter in accordance with
\nthe pronouncement made herein above.\n<\/p>\n
9th July, 2010
\nSahu\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Heera Lal vs State Of U.P. & Others on 9 July, 2010 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 ———– Hon’ble Ashok […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-45651","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nHeera Lal vs State Of U.P. & Others on 9 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/heera-lal-vs-state-of-u-p-others-on-9-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Heera Lal vs State Of U.P. & Others on 9 July, 2010 - 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