Chandra Prakash Tripathi vs State of U.P. and Others

Heard Mr. Anil Tiwari, learned Senior Counsel assisted by Mr. Apurva Tiwari, learned Counsel appearing for the Petitioner and learned Addl. Chief Standing Counsel Mr. Sanjay Bhasin and Mr. Sameer Kalia for the Respondent No. 3. In spite of the fact that the list has been revised, none responds for the Respondent No. 4.

After hearing learned Counsel for the parties, we proceed to decide the writ petition finally with the consent of the parties.

Short, question involved in the present writ petition, relates to reservation in the cadre of Deputy Commissioner, Entertainment Tax. Submission of the Petitioner''s counsel is that total sanctioned post of Deputy Commissioner, Entertainment Tax is six, against which one person is already working under Scheduled Caste category. Accordingly, there cannot be further reservation for Scheduled Caste category. He has relied upon the judgment reported in [2008 (26) LCD 1691] Dharam Pal Singh Chauhan and Anr. v. State of U.P. and Ors. decided by a Division Bench of this Court, of which one of us (Hon''ble Devi Prasad Singh, J) was a member. Later on, a Full Bench of this Court in a case reported in (2010) 3 UPLBEC 1761) Heera Lal v. State of U.P and Ors. has reiterated the proposition of law that in the event of conflict between statutory reservation/quota and roster, the quota shall prevail and no reservation can be granted more than what has been provided under the statute. Relevant portion from the judgment of Dharam Pal Singh Chauhan''s case (supra) is reproduced as under:

Subject to above, we record our finding as under:

(1) In the event of conflict between the quota of reservation and roster, the former shall prevail over the later, as held by Hon''ble Supreme Court in the case of R.S. Garg (supra). While applying quota for reservation and roster, the State have to confine the outer limit of reservation provided by 1994 Act for SC, ST and OBC category.

(2) The extent of reservation provided by Sub-section 1 of Section 3 of 1994 Act, is mandatory. In the matter of promotion or recruitment reservation cannot exceed the outer limit of 21%, 2% and 27% for SC, ST and OBC.

(3) Under the garb of Sub-section (5) while applying roster or Sub-section (7) of Section 3 of 1994 Act, the State cannot travel beyond the outer limit of reservation provided by Sub-section (1) of Section 3 of 1994 Act. Meaning thereby, even while applying roster for SC, ST or OBC, the outer limit of 21%, 2% or 27% should be adhered to.

(4) The outer limit of 50% provided by Article 16(4B) of the Constitution or by Hon''ble Supreme Court right from M.R. Balaji''s case (supra) till date, includes the reservation for all the categories or classes of employees. In case reservation is provided only for one category like in the present case, 21% to SC category, then it does not mean that State has right to enhance reservation upto 50% suo motu exceeding the statutory quota provided by the Act and statute. 50% rider is the outer limit permissible for all categories and in case under the Act or statutes lesser percentage of reservation has been provided to any class, then that will be the outer limit for the respective classes as in the present case, reservation for SC is 21% and it cannot be enhanced to 50%.

(5) While exercising power for purpose of reservation keeping in view the law laid down by the Hon''ble Supreme Court in M. Nagraj''s case (supra) to find out the backwardness or inadequacy of representation keeping in view the necessity and efficiency provided by Article 335 of the Constitution, the Government cannot travel beyond the outer limit of quota provided under Sub-section (1) of Section 3 of 1994 Act for SC, ST and OBC i.e., 21%, 2% and 27% respectively in the matter of promotion.

(6) Any reservation made exceeding the outer limit provided under the 1994 Act or the statutes, shall be deemed to be excessive reservation and the reservation so made, may be struck down by the Court as it would amount to derogation of constitutional requirement as held in M. Nagraj''s case. (supra).

In the present case since the sanctioned strength of the post of Engineer-in-Chief is two and the quota of scheduled caste is 21% under Sub-section (1) of Section 3 of the 1994 Act, one out of two posts cannot be reserved for scheduled caste.

Admittedly, for Scheduled Caste and Scheduled Tribes, the total reservation provided is 21% + 2%, i.e. 23%. Accordingly, out of six sanctioned posts, maximum reservation may be done of only one post in view of law settled by Division Bench as well as Full Bench of this Court in the cases cited above.

It has been admitted that the Respondent No. 4 is junior to the Petitioner but has been promoted ignoring the rightful claim of the Petitioner.

It is brought to the notice of this Court that against six sanctioned posts of Deputy Commissioner, Entertainment Tax, one Scheduled Caste candidate Shri Ram Sanwaray is already working. In view of above, appointment made in pursuance to reservation provided to second person under Scheduled Caste category by the Respondents, does not seem to be sustainable.

In view of above, the writ petition deserves to be and is hereby allowed. A writ of certiorari is issued quashing the impugned orders dated 18.11.2009 (Annexures 1 and 2) with consequential benefits. A writ in the nature of mandamus is issued directing the opposite parties to proceed afresh to fill up the vacancy of Deputy Commissioner, Entertainment Tax in the light of the judgment of this Court in the case of Dharam Pal Singh Chauhan, followed by Heera Lal (supra) and rules, expeditiously, say within a period of three months from the date of service of a certified copy of this order.

The writ petition is allowed accordingly. No order as to costs.