Suneel Kumar Pandey vs State of U.P. and Others

Heard learned Counsel for the petitioner and the learned Standing Counsel for the respondents.

Short question involved in the present writ petition under Article 226 of the Constitution of India, is that in case there is conflict between the roster provided by the Government and quota of the reservation, which one shall prevail.

Respondents while considering the promotion/appointment against seven posts of Deputy Director, reserved three posts for scheduled caste category candidate. While assailing the impugned reservation policy, the petitioner''s counsel submits that there can not be reservation for more than one post so far as the promotional avenue is concerned because of the fact that while calculating the quota for scheduled caste category candidate, it cannot be more than 21%.

By the interim order dated 3.8.2009, a Division Bench of this Court has restrained to promote more than one person under the reservation category of scheduled caste candidate.

The question involved in this writ petition has already been settled by a catena of judgments.

Learned Counsel for the petitioner relied upon the case of Dharampal Singh Chauhan and Anr. v. State of U.P. and Ors. 2008(26) LCD 1691 wherein it has been held that in case there is a conflict between roster and quota, then latter will prevail. Accordingly, while calculating the promotional avenues, reservation for the quota of scheduled caste cannot be more than 21%. The relevant portion of which is being 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(4-B) 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 or 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).

The ratio of the aforesaid judgment of Dharampal Singh Chauhan (supra) has been reiterated by another Division Bench in the case of Dr. Vishwajeet Singh and Others Vs. State of U.P. and Others, . Later on, a Full Bench of this Court in the case of Heera Lal v. State of U.P. and Ors. Civil Misc. Writ Petition No. 51617 of 2009 decided on 9.7.2010, had reaffirmed the aforesaid proposition of law by adjudicating the controversy. In view of the above, the operative portion of the Full Bench judgment of this Court is reproduced as under:

In view of the reasons in support of the conclusions drawn herein above, our answer to the questions posed are as follows:

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.

The decision in the case of Mahendra Kumar Gond v. State of U.P. reported in 2009 (6) ADJ 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.

In view of the above, we are of the view that in case number of post of Deputy Director is seven, then there will be reservation of one post for Scheduled Caste Candidate. However, respondents'' counsel submits that out of seven posts, there are four posts for promotional quota.

Without entering into the disputed question of fact with regard to the number of vacancies, we are of the view that since question has cropped up for adjudication with regard to the reservation quota in the promotion has been settled (supra) and judgment is binding, respondents may make reservation in the promotional quota strictly in accordance with the aforesaid judgments.

In view of above, we dispose of this writ petition directing the respondents to make reservation for Scheduled Caste with regard to promotional avenue strictly in accordance with the judgments of this Court in the case of Dharampal Singh Chauhan(supra) and others judgments as aforesaid. All the promotions shall be made strictly in accordance to the ratio of the judgments cited above.

Petition disposed of accordingly.