Chandrapal Singh vs Joint Director of Education and Others

Sudhir Agarwal, J.—Heard Sri K.A. Ansari, counsel for Petitioner, learned Standing Counsel on behalf of Respondents 1 and 3 and Sri Nisaruddin, holding brief of Sri A.R. Siddiqui, who has appeared on behalf of Respondent No. 5.

Learned Standing Counsel has filed counter affidavit but counsel for Respondent No. 5 stated that since issue involved in this case is pure legal, he does not propose to file any counter affidavit and matter may be decided on the basis of record and in any case, he rely counter affidavit filed by learned Standing Counsel.

Writ Petition is directed against the order dated 14.6.2011 passed by Joint Director of Education, Moradabad holding that the Ministerial post vacant in Nehru Smarak Inter College, Rajabpur, J.P. Nagar has to be treated a reserved post for scheduled caste and has to be filled in by making promotion thereon. It is not in dispute that there are only three sanctioned posts of Class III, i.e. one of Head Clerk and two of Clerk. Under Regulation 2 (2), 50% of the post are to be filled in by promotion and one by direct recruitment. Learned Counsel for Petitioner contended that in case any post whether in promotion quota or direct recruitment is kept reserved for schedule caste or scheduled tribes or other backward class, it would exceed the prescribed maximum quota of reservation and, therefore, No. reservation in the facts and circumstances of the case can be applied. Joint Director of Education has proceeded wholly illegally and has not applied his mind to the relevant provisions of the Statute and also a Full Bench judgment of this Court in Hira Lal v. State of U.P. and Ors. 2010 (6) ADJ 1.

Learned Counsel appearing for Respondents tried to support the impugned order on the basis of reasons contained therein.

This aspect has been replied by Apex Court in R.S. Garg Vs. State of U.P. and Others, observing that reservation prescribed in the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as "Act") is to maximum extent, to which the posts can be filled in by reservation, but in order to give effect such reservation, the prescribed maximum percentage cannot be deviated even by application of roster otherwise in such a case the application of roster would be ultra vires infringing the provisions of Article 16(1) of the Constitution, i.e., right of equal opportunity of employment. For example if a cadre consists of only two posts, keeping one post reserved therein would amount to increasing reservation to the extent of 50%. Maximum percentage of reservation provided under 1994 Act for Scheduled Castes is only 21% and for Other Backward Classes is only 27%. Therefore, none of either two can be considered by extending percentage of reservation to 50% as that would be ultra vires of the Act itself..

The concept of roster can validly be applied where the cadre/ service/post which constitute a single unit, for the purpose of reservation, consists of sufficient number of posts. For example, for the purpose of Other Backward Classes there must be at least four posts in entire cadre/service and for Scheduled Caste it must be five or more. The law laid down by the Apex Court has also been considered and detailed in similar circumstances by this Court in Smt. Pholpati Devi v. Smt. Asha Jaiswal and Ors. 2009 (2) ADJ 90 and Nem Singh v. State of U.P. and Ors. 2009 (5) ESC 3550 (All).

The reservation could have been applied only if reserved quota is incomplete as held by the Apex Court in R.K. Sabharwal and others Vs. State of Punjab and others, which hold the field till date.

The application of reservation to the post in question thus, appears to be wholly illegal and cannot be allowed. The Respondents have completely misread the provisions of reservation vice versa the statutory rules applicable in the case in hand and without understanding the concept of service and post in respect whereto reservation has to be applied, has proceeded to treat the post in question reserved for promotion of a reserved category candidate, and in this process, has clearly breached the law laid down by the Apex Court in R.S. Garg (supra) and R.K. Sabbarwal (supra), etc. R.S. Garg (supra) was a decision from the State of U.P. itself and was already available when the impugned order was passed.

The question raised in this writ petition has also been settled by this Court and is squarely covered by the judgment in Hira Lal (supra) also.

In the result, writ petition is allowed. Impugned order 14.6.2011 (Annexure 9 to writ petition) his hereby quashed. 11. Petitioner shall also be entitled to cost which I quantify to Rs. 10,000/- against Respondents 1, 2 and 3.