The interpretation of regulations and the application of constitutional principles to determine reservation on a single post.

( 1 ) THE short question that arises for consideration in this writ petition is whether in an institution where there is only one post can it be filled by direct recruitment or by promotion under regulation 2 (2) of Chapter III of the regulations framed under the U. P. Intermediate Education act, 1921.

( 2 ) THE contextual facts in Writ Petition No. 6681 of 1990 depicts that the petitioner Palak Dhari yadav a Class IV employee working since 1980 in D. A. V. Girls Higher Secondary School, Mau nath Bhanjan, Mau (in brief institution) was eligible and qualified to be promoted as clerk. There were three other class IV employees who were senior to him but were not eligible and qualified for promotion. There was only one post of clerk in the institution, which was vacant. The management filled the post by direct recruitment and appointed respondent No. 4 Sanjay kumar Upadhyay on 18. 8. 1989. The petitioner on 2. 9. 1989 made representation before respondent No. 1 that he may be promoted to the post of clerk as he is eligible for the same. The respondent No. 1 on 16. 9. 1989 wrote to the management for consideration of his claim. Since nothing was done by the management the respondent No. 1 sent a reminder on 23. 1. 1990. Thereafter, he filed writ petition before this Court on 8. 3. 1990. It was dismissed on the same day. The appointment of respondent No. 4 was approved on 7. 3. 1990 by Regional Inspectress of Girls school. The petitioner now has challenged the order of approval dated 7. 3. 1990. He claimed a direction to promote him as well.

( 3 ) WRIT Petition No. 19091 of 1990 has been filed by Sanjay Kumar Upadhyay for payment of salary. He filed a certificate of the Principal of the institution that he is continuously working in the institution.

( 4 ) I have heard Dr. R. G. Padia, learned senior counsel assisted by Shri Prakash Padia appearing for the petitioner and Sri G. N. Verma, learned senior counsel assisted by Shri Dhananjay Prasad appearing for respondent No. 4 in Writ Petition No. 6681 of 1990. The learned counsel for the parties in Writ Petition No. 19091 of 1990 have been heard. Standing counsel has also been heard. Both the Writ Petitions are based on same facts, therefore, they are taken up together for final disposal. Writ Petition No. 6681 of 1990 is treated as the leading petition.

( 5 ) COUNSEL for the petitioner Dr. Padia relied on Regulation 2 (2) of Chapter III of the regulations framed under the U. P. Intermediate Education Act. 1921 (in brief Regulation) and urged that in accordance with it. 50% sanctioned posts of head clerk and clerk is required to be filled by promotion from eligible class IV employees of the institution. He pointed out that the method of calculation is provided in the note appended to Regulation 2 (2 ). According to him if the regulation is construed with the note properly then the only result will be where there is only one post of clerk in the institution it had to be reserved for class IV employees. On the other hand. Sri G. N. Verma argued that where there is only one post of clerk no reservation can be made for the promotees and it could only be filled by direct recruitment. He urged that the respondents did not commit any error in filling the post by direct recruitment. It was in accordance with law and respondent No. 4 is entitled to be continued in service and paid his salary.

( 6 ) FOR better understanding Regulation 2 of the regulations is extracted below : ^^2- 1 fdlh lalfkk esa fu;qf gsrq fyfid ,oa prqfkzoxhz; dezpkfj;ksa dh U;wure ksf{kd ;ksx;rk ogh gksxhtks jktdh; mpprj ek/;fed fo|ky;ksa ds led{kh; dezpkfj;ksa ds fy, le;andle; ij fu/kkzfjr dh xbz gks A 2 iz/kku fyfid ,oa fyfid Js. kh ds Lohr inksa dhdqy la[;k dk ipkl izfrkr lalfkk esa dk;zjr fyfidksa,oa prqfkz Js. kh dezpkfj;ksa esa ls inksuufr }kjk Hkjktk,xk A ;fn dezpkjh in gsrq fu/kkzfjr vgzrk j[krk gksrfkk og vkxs in ij 5 o"kz dks vfojy eksfyd lsok dj pqdsgksa rfkk mudk lsok vfhkys[k vpnk gks inksuufr v