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2004 Supreme(All) 799
HIGH COURT OF ALLAHABAD
R.B.Misra, J.
Asha Jaiswal
Versus
Joint Director of Education
Civil Misc. Writ Petition 18553 of 2001
Decided On : 22 April 2004
Civil Misc. Writ Petition 18553 Of 2001
GANGA PRASAD, NAMBIAR SINGH, SANDEEP MOOKERJI, SANJEEV SINGH,
The main legal point established in the judgment is that promotion based on reservation policy must be in line with the provisions of the relevant Act and rules, and cannot be sustained if it does not comply with the legal framework.
Headnote:
Reservation - Promotion - Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994, Section 3(1), Section 10 of the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982, Rule 14 of Uttar Pradesh Secondary Education Services Selection Boards Rules, 1998 - The court discussed the provisions of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1994, Section 3(1), and Section 10 of the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982, along with Rule 14 of Uttar Pradesh Secondary Education Services Selection Boards Rules, 1998. The court emphasized that the promotion of the respondent No. 4 based on reservation policy was not in line with the provisions of the Act and rules, and set aside the order for promotion, directing the consideration of the petitioner for promotion within two months.
Fact of the Case:
The petitioner sought a writ of certiorari to quash the order appointing the respondent No. 4 as a lecturer in a college in the promotional quota treating her as a reserved category candidate. The petitioner claimed seniority and entitlement for promotion to the same post.
Finding of the Court:
The court found that the promotion of the respondent No. 4 based on reservation policy was not legally sustainable and set aside the order, directing the consideration of the petitioner for promotion.
Issues: The issues involved the legality of the promotion of the respondent No. 4 based on reservation policy, the seniority of the petitioner, and the entitlement for promotion.
Ratio Decidendi: The court held that there cannot be any reservation in promotion when the reserved category candidates are not in the cadre strength, and directed the consideration of the petitioner for promotion.
Final Decision: The writ petition was allowed, and the order appointing the respondent No. 4 as a lecturer was set aside, with directions to consider the petitioner for promotion within two months.
( 1 ) HEARD Sri Nambar Singh, assisted with Sri Sanjeev Singh, learned Counsel for the petitioner and Sri Ganga Prasad, learned Counsel for respondent No. 4 and Sri Sandeep Mukherjee, learned standing Counsel for the State.
( 2 ) WITH the consent of the learned Counsel for the parties, the writ petition is decided at this stage in view of the Second Proviso to Rule 2 of Chapter XXII of the Allahabad High Court rules, 1952.
( 3 ) IN this petition prayer has been made for writ of certiorari quashing the order dated 19. 4. 2001 passed by Joint Director of Education, Varanasi Region, Varanasi whereby the respondent No. 4 smt. Phoolpati Devi, was appointed as a lecturer in Zila Panchayat Palika Inter College, chandauli, District Chandauli in the promotional quota treating her as a reserved category candidate.
( 4 ) ACCORDING to the petitioner, she was appointed on the post of Assistant Teacher, CT Grade on 11. 11. 1970 and the respondent No. 4 was appointed to the post of Assistant Teacher in CT Grade on 29. 3. 1979. One post of Lecturer in Economics had fallen vacant on 30. 6. 2000 on the retirement of Smt. Prem Lata Singh. The petitioner claimed to be senior to the respondent No. 4, therefore, she claimed her entitlement for being promoted to the post of Lecturer in Economics in the College. The Committee of Management and District Inspector of Schools, Chanduali have also recommended the matter to the Joint Director of Education, Varanasi Region, Varanasi for promoting the petitioner to the post of lecturer in Economics in the College under the 50% quota for promotion. Earlier Smt. Urmila Chaudhari was already promoted to the post of lecturer in History in the College, therefore, the Scheduled Caste quota was already filled by promotion. Even though reservation in promotion was not provided at all. According to Article 16 (4-A) of the Constitution of India, it is provided that State may provide for reservation in the matter of promotion by making provisions in the law, in service in favour of SC and ST. The State of U. P. has enacted, the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled tribes and Other Backward Classes) Act 1994 (hereinafter referred to as the U. P. Act No. 4 of 1994) in which it is provided in Section 3 (1) that the reservation shall be provided at the stage of direct recruitment only but not in promotion as the law was when the impugned order was passed.
( 5 ) IN the light of Section 10 of the Uttar Pradesh Secondary Education Services Selection Boards act, 1982 read with Rule 14 of Uttar Pradesh Secondary Education Services Selection Boards rules, 1998 the reservation shall be provided at the stage of direct recruitment and not at the stage of promotion, therefore, in the present case, no reservation in promotion could be provided at the stage of promotion. For convenience the relevant provisions are extracted below :
"section 10, Procedure of section by direct recruitment.-- (1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward classes of citizens in accordance with the
Uttar Pradesh Public Services (Reservation for scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed. (2) the procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed : provided that the Board shall, with a view to inviting talented persons, give wide publicity in the state to the vacancies notifies under Sub-section (1 ). " "rule 14. Procedure for recruitment b
