# Alka Tiwari & Ors v. State of U.P

- **Citation:** (2024) 1 ILRA 60
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-23
- **Case number:** Writ A No. 31192 of 2017
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alka-tiwari-ors-v-state-of-u-p-51378
- **Pages:** 16

## Headnote

Civil Law - The U.P. Educational (General
Education Cadre) Service Rules, 1992 - Rule
5(18) -The petitioners challenged Sub-Rule 18 of
Rule 5, which allocates 61% of promotion quotas
to
Headmasters
(Men's
Branch),
22%
to
Headmistresses (Women's Branch), and 17% to
Deputy Inspectors of Schools and equivalent nonteaching posts for the position of Principal,
Government Intermediate Colleges. The petitioners
argued that this quota is arbitrary, unreasonable,
and
discriminatory,
as
it
disadvantages
Headmistresses despite their larger cadre strength
(824 posts) compared to Headmasters (768
posts). (Paras 2, 5, 14, 16-17, 24-26)

Constitutional
Validity
and
Gender
Discrimination The court found the 61:22
1 All. Alka Tiwari & Ors. Vs. State of U.P.
61
quota
ratio
between
Headmasters
and
Headmistresses to be prima facie discriminatory,
violating Articles 14 (equality before law), 15(1)
(prohibition of discrimination based on sex), and
16
(equality
of
opportunity
in
public
employment).
The
disproportionate
quota
favoring the Men's Branch, despite the increased
number
of
Headmistresses,
was
deemed
irrational, especially since the eligibility criteria
for
promotion
under
Rule
16
are
nondiscriminatory and seniority-base (Paras 31, 4445)
Changed Circumstances and Obsolescence of
Rules The court noted that at the time of
promulgation of the 1992 Rules, the cadre
strength of Headmasters (470) significantly
exceeded
that
of
Headmistresses
(154).
However, by 2023, the cadre strength had
shifted
to
768
Headmasters
and
824
Headmistresses, rendering the original 61:22
quota obsolete and misaligned with the current
cadre realities. The court emphasized that rules
must serve their legislative intent and adapt to
changed circumstances to avoid perpetuating
inequity. (Paras 26, 31-32)
 St.'s Inaction on Proposed Amendments The
Director of Secondary Education's proposal
(dated 20.02.2019) to revise the promotion
quota to 33:33:34 for Men's Branch, Women's
Branch, and Inspection Branch, respectively,
was not acted upon by the St. Government
despite multiple court orders and a Committee's
recommendations
(dated
26.10.2021).
The
court criticized this inaction, noting that it failed
to
address
the
gender
imbalance
and
perpetuated discrimination. (Paras 15, 27, 3637, 41-43)
Interim Relief and Combined Eligibility List
Pending amendment of the 1992 Rules, the
court directed that promotions to Group B posts,
including Principals, be made based on a
combined eligibility list of Headmasters and
Headmistresses, utilizing the total 83% quota
(61% + 22%) for teaching staff, in accordance
with Rule 16's seniority-based criteriThe 17%
quota for the non-teaching wing was preserve
The court overruled its prior interim order
(dated
14.07.2021)
prohibiting
promotions
under existing rules to facilitate this process.
(Para 47)
Special Appeals of Direct Recruits In Special
Appeal Nos. 507 and 513 of 2023, direct recruits
challenged interlocutory orders affecting their
postings as Principals. The court allowed these
appeals, setting aside the impugned orders, as
the appellants were appointed under the 50%
direct recruitment quota, which was unaffected
by the promotion quota disputThe St. was
granted flexibility to adjust postings based on
administrative needs. (Para 48)
G. Directive to St. Government The court
disposed of Writ-A Nos. 31192 of 2017 and
21232 of 2021, directing the St. Government to
expeditiously decide on the Director's proposal
(dated
20.02.2019)
and
the
Committee's
recommendations (dated 26.10.2021) to amend
the 1992 Rules. The court emphasized the need
for the St. to address gender discrimination and
align the promotion quota with current cadre
strengths
to
ensure
constitutional
complianc(Para 46)
H. Judicial Role and Gender Justice The court
underscored its duty to uphold gender justice
under the Constitution, particularly through
Articles 14, 15, and 16. While acknowledging
that courts cannot legislate, it hel

## Text

_Characters 0–39,895 of 53,701. This is a partial read: ask again with offset=39895 for what follows._

60 INDIAN LAW REPORTS ALLAHABAD SERIES
dead, no proceedings of any kind can be
taken, terminating his status after his
demise. Even if it be considered that the
petitioner's father's appointment was made
contrary to the Statute, holding it so after
his demise, would be passing an order
against a dead man adverse to his interest,
particularly one relating to his status. If
disciplinary proceedings were initiated
against the petitioner's father on the charge
that he secured an appointment, that was
invalid, deliberately, these would abate
upon his demise, as held by the Supreme
Court in A.K.S. Rathore (Dead) through
LRs v. Union of India and another4.
Since no disciplinary proceedings or other
proceedings were initiated during the
petitioner's father's lifetime, no different
consequence can attach after his death visà-vis his status and the rights of his
dependents. The petitioner's father held a
permanent post in the establishment of the
Nagar Nigam, Saharanpur until his demise.
Therefore, the respondents are obliged to
consider the petitioner's candidature for
compassionate appointment as an eligible
member of the deceased-employee's family,
in accordance with the Rules of 1974.

14. In the result, this writ petition
succeeds
and
stands
allowed.
The
impugned order dated 14.09.2023 passed
by the Nagar Swasthya Adhikari, Nagar
Nigam, Saharanpur is hereby quashed. A
mandamus is issued to the Nagar Ayukt,
Nagar Nigam, Saharanpur and the Nagar
Swasthya
Adhikari,
Nagar
Nigam,
Saharanpur
to
consider
and
decide,
between themselves, the petitioner's claim
for appointment on compassionate basis in
accordance with law, within a month of the
date of receipt of a copy of this judgment.

15. The Registrar (Compliance) is
directed to communicate this order to the
Nagar Ayukt, Nagar Nigam, Saharanpur
and the Nagar Swasthya Adhikari, Nagar
Nigam, Saharanpur.
----------
(2024) 1 ILRA 60
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.01.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ A No. 31192 of 2017
Along With
Writ A No. 21232 of 2021
Special Appeal No. 513 of 2023
And
Special Appeal No. 507 of 2023

Alka Tiwari & Ors. ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
Sameer Kalia, Birendra Pratap Singh,
Meenakshi Singh Parihar

Counsel for the Respondent:
C.S.C., Ajay Pratap Singh, Onkar Singh, Raj
Kr. Singh Suryavanshi

Civil Law - The U.P. Educational (General
Education Cadre) Service Rules, 1992 - Rule
5(18) -The petitioners challenged Sub-Rule 18 of
Rule 5, which allocates 61% of promotion quotas
to
Headmasters
(Men's
Branch),
22%
to
Headmistresses (Women's Branch), and 17% to
Deputy Inspectors of Schools and equivalent nonteaching posts for the position of Principal,
Government Intermediate Colleges. The petitioners
argued that this quota is arbitrary, unreasonable,
and
discriminatory,
as
it
disadvantages
Headmistresses despite their larger cadre strength
(824 posts) compared to Headmasters (768
posts). (Paras 2, 5, 14, 16-17, 24-26)

Constitutional
Validity
and
Gender
Discrimination The court found the 61:22
1 All. Alka Tiwari & Ors. Vs. State of U.P.
61
quota
ratio
between
Headmasters
and
Headmistresses to be prima facie discriminatory,
violating Articles 14 (equality before law), 15(1)
(prohibition of discrimination based on sex), and
16
(equality
of
opportunity
in
public
employment).
The
disproportionate
quota
favoring the Men's Branch, despite the increased
number
of
Headmistresses,
was
deemed
irrational, especially since the eligibility criteria
for
promotion
under
Rule
16
are
nondiscriminatory and seniority-base (Paras 31, 4445)
Changed Circumstances and Obsolescence of
Rules The court noted that at the time of
promulgation of the 1992 Rules, the cadre
strength of Headmasters (470) significantly
exceeded
that
of
Headmistresses
(154).
However, by 2023, the cadre strength had
shifted
to
768
Headmasters
and
824
Headmistresses, rendering the original 61:22
quota obsolete and misaligned with the current
cadre realities. The court emphasized that rules
must serve their legislative intent and adapt to
changed circumstances to avoid perpetuating
inequity. (Paras 26, 31-32)
 St.'s Inaction on Proposed Amendments The
Director of Secondary Education's proposal
(dated 20.02.2019) to revise the promotion
quota to 33:33:34 for Men's Branch, Women's
Branch, and Inspection Branch, respectively,
was not acted upon by the St. Government
despite multiple court orders and a Committee's
recommendations
(dated
26.10.2021).
The
court criticized this inaction, noting that it failed
to
address
the
gender
imbalance
and
perpetuated discrimination. (Paras 15, 27, 3637, 41-43)
Interim Relief and Combined Eligibility List
Pending amendment of the 1992 Rules, the
court directed that promotions to Group B posts,
including Principals, be made based on a
combined eligibility list of Headmasters and
Headmistresses, utilizing the total 83% quota
(61% + 22%) for teaching staff, in accordance
with Rule 16's seniority-based criteriThe 17%
quota for the non-teaching wing was preserve
The court overruled its prior interim order
(dated
14.07.2021)
prohibiting
promotions
under existing rules to facilitate this process.
(Para 47)
Special Appeals of Direct Recruits In Special
Appeal Nos. 507 and 513 of 2023, direct recruits
challenged interlocutory orders affecting their
postings as Principals. The court allowed these
appeals, setting aside the impugned orders, as
the appellants were appointed under the 50%
direct recruitment quota, which was unaffected
by the promotion quota disputThe St. was
granted flexibility to adjust postings based on
administrative needs. (Para 48)
G. Directive to St. Government The court
disposed of Writ-A Nos. 31192 of 2017 and
21232 of 2021, directing the St. Government to
expeditiously decide on the Director's proposal
(dated
20.02.2019)
and
the
Committee's
recommendations (dated 26.10.2021) to amend
the 1992 Rules. The court emphasized the need
for the St. to address gender discrimination and
align the promotion quota with current cadre
strengths
to
ensure
constitutional
complianc(Para 46)
H. Judicial Role and Gender Justice The court
underscored its duty to uphold gender justice
under the Constitution, particularly through
Articles 14, 15, and 16. While acknowledging
that courts cannot legislate, it held that
statutory provisions must be interpreted to
serve their purpose and eliminate discrimination,
especially when rules become obsolete due to
changed circumstances. (Paras 33, 44-45)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

(1) Heard Sri S. K. Kalia, learned
Senior Advocate assisted by Mr. Birendra
Singh, learned counsel for the petitioners in
Writ-A No. 31192 of 2017, Sri Onkar
Singh, learned counsel for the petitioners
appearing in Writ-A No. 21232 of 2021, Sri
Sharad Pathak, learned counsel for the
appellant in Special Appeal Nos. 513 of
2023 and 507 of 2023, Sri Kuldeep Pati
Tripathi,
learned Additional Advocate
General
appearing
for
the
Staterespondents
and
Sri
R.
K.
Singh
Suryavanshi, learned Counsel representing
the U. P. Public Service Selection Board.

(2) By means of Writ-A No.31192 of
2017 filed under Article 226 of the
Constitution, the veracity of Sub-Rule 18 of
62 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 5 of the Uttar Pradesh Educational
(General Education Cadre) Service Rules,
1992 has been challenged. The said Rule
apparently provides for the ratio in which
the
Headmasters,
Headmistresses
and
District Inspectors of Schools are to be
considered for promotion to the post of
Principal of Government Intermediate
Colleges.

(3) The petitioners, who are working
on the post of Block Education Officers in
different Blocks in the State of U.P., are
challenging
the
impugned
Office
Memorandum dated 14.09.2021 have filed
Writ Petition No. 21232 (SB) of 2021 as
also for declaring the Rule 5 (18) of the
Rules, 1992 as ultra vires for the reason
that in the DPC held on 17.01.2018 for
promotion on Group - B (Higher) posts,
only Men and Women teaching branches
were
considered,
while
ignoring
the
candidates of inspecting cadre.

(4) In Special Appeal Nos. 507 of
2023 and 513 of 2023, the appellants who
are direct recruits have challenged the
impugned orders, in respect of their
posting, passed against them.

(5)

In
nutshell
the
case
of
petitioners of Writ-A No. 31192 of 2017
is
that
on
18.04.1992,
the
State
Government promulgated "The Uttar
Pradesh Educational (General Education
Cadre) Service Rules, 1992" [briefly, it is
stated as 'Rules, 1992'] for the purpose
of recruitment to Group 'A' and Group
'B' (higher) posts. Rule 5 of Rules, 1992
provides the source of recruitment to
various posts of Group 'A' and Group 'B'
(higher) posts. Sub-Rule 18 of Rule 5 of
the Rules, 1992 stipulates 61%. 22% and
17%
quota
for
Headmasters,
Headmistresses
and
the
incumbents
posted on other equivalent teaching and
non-teaching
posts
respectively
for
promotion on the post of Principal,
Government Intermediate College (for
Boys or Girls) as well as on other
equivalent Group - B posts.

(6) In the year 1992, the State
Government
for
the
purpose
of
appointment on the post of Lecturer in
Government Intermediate Colleges also
promulgated The Uttar Pradesh Special
Subordinate
Educational
(Lecturer's
Cadre) Service Rules, 1992 [here-inafter it has been referred to as 'Lecturer
Service Rules'] and Rule 5 of the said
Rules provides source of recruitment for
the post of Lecturer and there are two
separate branches for the post of
Lecturer, i.e., Men and Women.

(7) In the year 1993, the Uttar
Pradesh
Educational
Teaching
(Subordinate Gazetted) Service Rules,
1993 [in short, it is referred to as 'Rules,
1993'] were promulgated governing
appointment to the Headmasters and
Headmistresses in Government Higher
Schools and Rule 5 of the said Rules
provides the source of recruitment to the
post Headmasters and Headmistresses of
Government Higher Secondary Schools.

(8) As per Rule 5 (1) of the Rules,
1993,
the
post
of
Headmaster
of
Government Higher Secondary School
would be filled up by promotion through
Selection Committee in the ratio of 45%
and 55% respectively from amongst
substantively appointed men's branch (I)
Lecturers who have completed three years
service as such and Assistant Masters (L.T.
Grade) who have completed twelve years
service as such on the first day of the year
of recruitment.
1 All. Alka Tiwari & Ors. Vs. State of U.P.
63

(9) According to Sub-Rule (3) of Rule
5 of Rules, 1993, the promotion would be
made through Selection Committee in the
ratio of 45% and 55% respectively from
amongst
substantively
appointed
(i)
Lecturers who have completed three years
service as such and Assistant Mistress (L.T.
Grade) who have completed twelve years
service as such on the first day of the year
of recruitment.

(10) During the period 1997 to 2001,
the petitioners were initially appointed on
the post of Lecturer (Women Branch) in
Government Inter Colleges in the State of
U.P. through Public Service Commission
under the provisions of Rule 5 of the
Lecturer Service Rules. Since then, they are
discharging their duties on their respective
posts.

(11) By passage of time, the
petitioners were promoted on the next
higher post of Headmistress, Government
Girls Higher Secondary Schools during the
period 2013 to 2016 and were posted at
different schools in the State of U.P.

(12) On 18.07.2017, final seniority
list of incumbents of The Uttar Pradesh
Educational
Teaching
(Subordinate
Gazetted) Service Women's Branch for the
year 2013-14 was prepared and circulated.
However, final seniority lists of Men's
branch of the said Cadre for the years
2013-14, 2014-15 and 2015-16 were
finalized and circulated vide letters of same
date. Thereafter, they were sent to the
Commission
for
consideration
of
promotion of the incumbents of both
branches on Group - B (higher) posts.

(13) The apprehension of the
petitioners is that on account of fixation of
61% quota for promotion of the incumbents
on Men's branch, several persons junior to
the petitioners are to be considered for
promotion on higher post defeating the
rightful claim of the petitioners for being
considered for promotion on the said higher
post alongwith their male counterparts who
are on equal footing in the seniority
positions.

(14) According to Sri S. K. Kalia,
learned Senior Advocate, assisted by Sri
Birendra Pratap Singh, learned counsel for
the petitioners, the ratio of 22% provided
for
the
Headmistresses
is
arbitrary,
unreasonable and without any rationale in
view
of
the
fact
the
number
of
Headmistresses is much large than the
Headmasters
in
the
State
of
the
Government Higher Secondary Schools for
Girls and Boys.

(15) Considering the increased
number of the posts of Headmistresses and
the present number of the posts of
Headmasters as well as Sub-rule under
challenge,
the
Director,
Secondary
Education, U.P., Lucknow has already
recommended the State Government to
provide the quota, as per present sanctioned
strength of the posts of Headmistresses, for
promotions to the posts of Principal of
Government Inter College and in this
regard, he placed reliance on the letter
dated 20.02.2019, contained in Annexure
No.RA-1 to the rejoinder affidavit.

(16) Sri S.K. Kalia, learned Senior
Counsel, assisted by Sri Birendra Pratap
Singh, has submitted that reconsideration
of the rule under challenge by the State
Government has not shown any positive
result despite the fact that as of now insofar
as the figure of female headmistresses
working in the feeding cadre is concerned,
the same corresponds to 824 whereas the
64 INDIAN LAW REPORTS ALLAHABAD SERIES
eligible candidates in the category of male,
corresponds to 768 resulting into an
imbalance in the matter of promotion on
the post of Principal in intermediate
colleges from two different sources of
which the eligibility stands at par.

(17) The prescribed percentage for
female candidates is 22% whereas 61% posts
are reserved for male candidates which is an
apparent
discrimination
to
which
the
functional female candidates are meted with,
though being senior. This discrimination
deserves to be viewed in the light of relevant
data and the actual strength of eligible
candidates working in the two feeding cadres.

(18) Sri Kuldeep Pati Tripathi, learned
Additional Advocate General appearing for
the State-respondents and Sri R. K. Singh
Suryavanshi, learned Counsel representing
respondent
No.3/Selection
Board
have
submitted that Uttar Pradesh Educational
(General Education Cadre) Service Rules,
1992 provides that 50% of the Group B posts
shall be filled in by direct recruitment through
U.P.
Public
Service
Commission
and
remaining 50% of Group B posts shall be
filled
in
by
making
promotions
in
consultation with Public Service Commission
from amongst (a) Headmaster, Government
Higher Secondary Schools and government
Normal Schools and other equivalent posts of
men's teaching branch (b) Headmistress
Government Higher Secondary Schools for
girls and Government Girls Normal School
and other equivalent posts of women teaching
branch and (c) Deputy Inspector of Schools
(Boys & Girls) and other equivalent posts of
inspecting and non-teaching side in ratio of
61%, 22% and 17% respectively.

(19) They have further submitted that
the Departmental Promotion Committee
(DPC) in its meeting held on 17.01.2018
had completed the selection proceedings
for promotion on Group B posts. However,
candidates belonging to (c) category, i.e.,
Deputy Inspector of Schools (Boys &
Girls) had filed two writ petitions, namely,
Writ Petition No. 1617 of 2018, Uttar
Pradesh Vidyalaya Nirikshak Sangh and
others v. State of U.P. and others, wherein
vide order dated 12.01.2018, a co-ordinate
Bench of this Court had stayed declaration
of result of promotions & Writ Petition No.
1226 (SB) of 2018, Padma Shekhar and
others v. State of U.P. and others
respectively.

(20) The next submission of the
learned counsel for the respondents is that
in exercise of powers conferred under
Article 309 of the Constitution of India, the
aforesaid Rules, 1992 have been framed,
thus it cannot be said that the Rules are
violative of Articles 14 and 16 of the
Constitution of India.

(21) He has contended that when on a
particular post promotions are to be made
from different sources, then it is the domain
of the rule making authority to fix the quota
of promotion from different posts by
considering various relevant factors. Rule 5
of Rules, 1992 related to Group B posts so
far as it fixes quota of different posts in the
feeding cadre is perfectly constitutional and
does not call for any interference by this
Court.

(22) The next contention of the
learned Counsel for the respondents is that
the cadre of men's branch is different to
that of women's branch and seniority of
both the cadres is prepared separately,
therefore, it is absolutely incorrect to say
that persons junior to them in the men's
branch were more beneficial compared to
them.
1 All. Alka Tiwari & Ors. Vs. State of U.P.
65

(23)

While
continuing
his
submissions, he has emphasized that at
present 768 posts of Headmasters in male
branch, 824 posts of Headmistresses in
female
branch
and
788
posts
of
Government Inter College (both male and
female branch) are sanctioned. In this
context, relying on the catena of judments
passed by the Apex Court, he has stated
that any provision of Rules cannot be held
to be arbitrary on the ground that the same
is less beneficial to one particular group of
employees. He further submitted that Rule
Making Authority frames the Rules after
taking into various factors and therefore,
merely saying that it is beneficial to one
particular group, the said Rules cannot be
held to be violative of Articles 14 and 16 of
the Constitution of India.

(24) In rebuttal, learned Counsel
appearing
for
the
petitioners
have
submitted that the Rules under challenge
providing
the
higher
quota
to
the
Headmasters for consideration of their
promotion on Group - B posts including
the post of Principal, Government Inter
College (Boys & Girls) is irrational,
arbitrary and violative of Articles 14 and 16
of the Constitution of India. Further, it
vitiates the rightful claim of the petitioners
for being considered for promotion on the
aforesaid posts whereas there is no
bifurcation of male and female on Group -
B posts including the post of Principal,
Government Inter College (Boys & Girls)
and the posts of the Headmistresses (herein
petitioners)
are
much
more
than
Headmasters.

(25) In continuity, he has submitted
that where the promotion is to be made
from different cadres, the quota of each
cadre should be in ratio as per the cadre
strength and the quota should not be
irrational and arbitrary. In the present case,
the cadre strength of the petitioners
(Headmistress) is much higher than the
cadre strength of male branch and by
means of the Rules under challenge, the
higher quota for male branch has been
provided for promotion on the post of
Principal, Government Inter College (Boys
& Girls) and Group - B posts which
vitiates the rightful claim of the petitioners
for being considered for their promotion on
Group - B posts including the post of
Principal, Government Inter College (Boys
& Girls).

(26) Further contention of learned
counsel for the petitioners is that at the time
of promulgation of impugned Rules, the
cadre
strength
of
Headmasters
and
Headmistress
were
470
and
154
respectively as provided in Rules, 1993 and
now the cadre strength of the Headmasters
and Headmistress have been increased to
768 and 824 respectively as has been stated
by
the
learned
Additional
Advocate
General. In view of this, providing higher
quota to the Headmasters (Male cadre) for
consideration of their promotion on the
higher post is illegal and arbitrary and
cannot be sustained in the eyes of law.

(27) In the above context, the
Director/respondent No.2 has sent a
proposal in the form of letter dated
20.02.2019 to the State Government for
providing quota of 33%, 33% and 34%
to the Male Branch, Female Branch and
Inspection Branch respectively.

(28) By moving an impeladment
application, Vidhyalay Nirikshak Sangh
through its Secretary has brought on record
that initially, the total cadre strength of the
Deputy Inspector of Schools in U.P. was
179 and in 2011, the State Government has
66 INDIAN LAW REPORTS ALLAHABAD SERIES
merged the posts of Sub-Deputy Inspector
in
Deputy
Inspector
in
Deputy
Inspector/Block Education Officer and
extended the cadre strength as 1031 posts.

(29) Considered the submissions
made by the learned Counsel for the parties
and perused the records available on
record.

(30) The object of law sometimes
comes in conflict with the plain and literal
meaning of the statutory language and in
such situations, the intention of legislation
is bound to be derived from its object rather
than the literal meaning of rules. Need to
revisit such laws becomes imminent and
the law makers ought not to show a
repulsive role. The recruitment of the
Principals of Government Inter Colleges is
regulated under the Rules, known as, Uttar
Pradesh Educational (General Education
Cadre) Service Rules, 1992 [here-in-after it
is referred to as 'Rules, 1992']. Rule 5 of
the Rules, 1992 prescribes the extent of
percentage from various categories who
can be considered for promotion as per
Rule 16 of the said Rules.

(31) It is well stated case of the State
in the counter-affidavit that at the time of
prescription
of
percentage
between
'headmasters'
and
'headmistresses'
working in the feeding cadre, the relevant
consideration
was
the
strength
of
Government High Schools for boys and
girls and with the passage of time, the
strength of High Schools for Girls has
considerably increased meaning thereby,
that the High Schools established by the
Government for girls are more in number
than the boys as on date. The percentage
prescribed under Rule 5 is thus questioned
to have come in conflict and such a rule
would serve no purpose under which the
proportional prescription is based on sex. It
is further argued that once Rule 16 lays
down
a
non-discriminatory
criteria,
observance of Rule 5 on the aspect of
percentage is violative of Articles 14 and
15 of the Constitution of India.

(32) At the time when the writ
petition was filed, a recommendation was
forwarded by the Director, Secondary
Education
proposing
an
equitable
percentage for all the three sources of
recruitment, namely, males, females and the
officers
from
Inspection
Wing.
This
recommendation made by the Director of
Secondary Education does not seem to
have sailed through for the reasons best
known to the Government. On the contrary,
the premise which was relevant for
promulgation of the aforesaid Rule has lost
its significance and the object of law
demands that the percentage so stipulated
having become obsolete has to be read in
the reasonable manner that may serve the
purpose of law.

(33) We are conscious of the fact that
the Constitutional Courts cannot act as
legislators to add or subtract anything from
the plain reading of the Statute but the
purpose of law, if it can be read without
exceeding to the limits of judicial domain,
a provision may be read as a whole so as to
serve its objects. The Court would hasten to
reproduce the relevant Rules 5 and 16 of
the Rules 1992 as under:

"5. Source of recruitment -
Recruitment to the various categories of
posts in the Service shall be made from the
following sources :

1
Director of Education
(Secondary), Director of
Education (Basic), Uttar
By promotion through the
Selection Committee from
amongst
substantively
1 All. Alka Tiwari & Ors. Vs. State of U.P.
67
Pradesh, Director, State
Council of Educational
Research and Training,
Uttar Pradesh, Director
Adult Education, Uttar
Pradesh and Director,
Urdu
and
Oriental
Languages,
Uttar
Pradesh.
appointed
additional
Directors
mentioned
at
serial Numbers 6 to 12 of
the Appendix I who have
completed
three
years
Service as such, on the
first day of the year of
recruitment.
2
Additional Director of
Education (Secondary),
Additional Director of
Education
(Basic),
Additional Director of
Education
(Correspondence
Course),
Additional
Director of Education
(Non-Formal
Education), Additional
Director of Education
(Vocational Education),
Additional Director of
Education (Hills) and
Additional Director of
Education
(Women
Education).
By promotion through the
Selection Committee from
amongst persons who are
substantively appointed to
the posts mentioned at
serial Numbers 13 to 16 of
the Appendix I and who
have completed five years
service, as such on the first
day
of
the
year
of
recruitment.
3
Joint
Director
of
Education
(Finance,
Training, Women and
Basic Education),

Secretary,
Board
of
High
School
and
Intermediate Education,
Uttar Pradesh, Director,
State
Educational
Technology
Institute,
Lucknow and Principal,
State Institute of School
Sports, Faizabad.

4
Director, State Institute
of Science Education.
By transfer from amongst
officers
mentioned
at
serial number (3) who
possess the qualifications
mentioned
against
the
posts in the Appendix II.
By promotion through the
Selection Committee from
amongst persons who are
substantively appointed to
the posts mentioned at
Serial numbers 25 to 33 of
the Appendix I and who
have completed six years
service, as such, on the
first day of the year of
recruitment.
5
Deputy
Directors
of
Education,
Regional
Deputy
Director
of
Education,
Regional
Inspectress
of
Girls
Schools, Principal, State
Institute of Education,
Allahabad,
Additional
Secretary,
Board
of
High
School
and
Intermediate Education
Regional
Offices,
Additional
Secretary
(Administration)
at
Headquarters, Secretary
Board
of
Basic
Education,
Uttar
Pradesh
and
Senior
Advisor
(Non-Formal
Education),
State
Institute of Education.
6
Director,
Bureau
of
Psychology, Allahabad.
By transfer from amongst
officers
mentioned
at
serial number (5) who
possess the qualifications
mentioned
in
the
Appendix II against the
post.
7
District
Inspector
of
Schools
(boys
and
girls),
Regional
Assistant Director of
Education
(Basic),
Principal
and
Senior
Research Officer, Govt.
Central
Pedagogical
Institute,
Allahabad,
Text-Books
Officer,
Additional
Secretary
Text-Book,
Additional
Secretary (Recognition)
Board of High School
and
Intermediate
Education,
Uttar
Pradesh, Adviser (Nonformal
Education),
Vice-Principal
and
Associate Director of
State
Institute
of
Education,
Allahabad,
Registrar, Departmental
Examinations, Assistant
Director of Education at
Head
quarters,
Joint
Secretary,
Board
of
Basic Education, Uttar
Pradesh,
Principal
Government
Training
College
for
Women,
Allahabad.
By promotion through the
Selection Committee from
amongst persons who are
substantively appointed to
the posts mentioned at
serial numbers 44 to 63 of
the Appendix I and who
have completed six years
service, as such, on the
first day of the year of
recruitment.
8
Assistant Director, State By transfer from amongst
68 INDIAN LAW REPORTS ALLAHABAD SERIES
Institute
of
Science
Education.

officers
mentioned
at
Serial number (7) who
possess the qualifications
mentioned against each
post in the Appendix II.
9
Professor
of
Mathematics at the State
Institute
of
Science
Education.

10 Professor of Physics at
the State Institute of
Science Education.

11 Professor of Chemistry
at the State Institute of
Science Education.

12 Professor of Botany at
the State Institute of
Science Education.

13 Senior
Research
Psychologist, Bureau of
Psychology, Allahabad.

14 Director, State Hindi
Institute, Varanasi.

15 Principal,
Government
Basic Training College,
Varanasi.

16 Principal,
Government
Constructive
Training
College, Lucknow.

17 Principal,
English
Language
Teaching
Institute, Allahabad.

18 District Basic Education
Officer,
Associate
Inspector of Schools.
Principals Government
Intermediate
Colleges
(for
boys
or
girls),
Assistant
Deputy
Director of Education,
Personal Assistant to
Director of Education
(Secondary and Basic),
Deputy
Text-Books
Officer,
Deputy
Secretary,
and
Additional
Deputy
Secretary,
Board
of
High
School
and
Intermediate Education,
Uttar
Pradesh
at
Headquarters
and
Regional
offices,
Assistant
Deputy
Director of Education
(i)
50%
by
direct
recruitment through the
combined State Services
Examination conducted by
the Commission.
(ii) 50% by promotion
through the Commission
from
amongst
substantively appointed :
(a)
Head
Masters,
Government
Higher
Secondary Schools and
Government
Normal
Schools
and
other
equivalent posts of Men's
Teaching Branch.
(b)
Head
Mistress,
Government
Higher
Secondary
Schools
for
Girls
and
Government
Girls Normal Schools and
other equivalent posts of
Women teaching Branch,
(Correspondence
Course), State Institute
of
Education,
Uttar
Pradesh,
Allahabad,
Education
Expansion
Officer, Vice Principal
Government
Basic
Training
Colleges,
Varanasi,
Research
Professor, Government
Basic Training College,
Varanasi,
Senior
Research
Professor,
State
Institute
of
Education,
Allahabad,
Vice
Principal/Professor,
Government
Central
Pedagogical
Institute,
Allahabad,
Principal
Junior Basic Training
Colleges
Officer
on
Special
Duty
(NonFormal
Education),
District
Non-Formal
Education
Officer,
Associate
Regional
Inspectress
of
Girls
School, Vice Principal
and
Professor,
Government
Training
College
for
Women,
Allahabad,
Principals
for
Government
Training Colleges for
Women.
and
(c) Deputy Inspectors of
Schools (Boys and Girls)
and other equivalent posts
on the inspecting and nonteaching side, in the ratio
of 61%, 22% and 17%
respectively,
who
have
completed
three
years
service, as such, on the
first day of the year of
recruitment.
19 Science
Promotion
Officer, Professor State
Institute
of
Science
Education, Psychologist
and
Regional
Psychologist, Professor
and Associate Professor,
English
Language,
Teaching
Institute
Assistant Director, State
Hindi
Institute,
Inspector
Sanskrit
Pathshalas,
Uttar
Pradesh,
Inspector
Arabic Madarsas, Law
Officer Directorate of
Education,
Uttar
Pradesh,
Principal,
Government
Physical
Training
College,
Rampur, Professor Craft
Government
Constructive
Training
College,
Lucknow,
Statistical Officer, State
By transfer from amongst
officers
mentioned
at
serial number (18) who
possess the qualification
mentioned against each
post in the Appendix-II.
1 All. Alka Tiwari & Ors. Vs. State of U.P.
69
Institute of Education
and
Directorate
of
Education,
Uttar
Pradesh,
Allahabad,
Principal,
Government
College
of
Physical
Education for Women,
Allahabad,
Principal
Government
Women
College
of
Home
Science, Allahabad and
Principal,
Government
Nursery
Training
College, Allahabad
 and Agra, Reprography
Officer :

Provided that if sufficient number
of suitable eligible persons in respect of the
posts mentioned at serial Nos. (1), (2), (3),
(5) and (7) are not available for promotion,
the requisite length of service may be
relaxed by the Government.

16. Procedure for recruitment by
promotion through the Commission -
Recruitment by promotion through the
Commission shall be made on the basis of
seniority subject to the rejection of unfit in
accordance
with
the
Uttar
Pradesh
Promotion by Selection in Consultation
with
Public
Service
Commission
(Procedure) Rules, 1970 as amended from
time to time."

(34) From the record, it comes out
that for increasing the quota of promotion
against Group B posts of U.P. Educational
(General Education Cadre) under the
Inspecting Branch, Writ-A No. 1617 of
2018, U.P. Vidyalaya Nirikshak Sangh and
others v. State of U.P. and others, Writ-A
No. 9561 of 2021, Arjun Singh and others
v. State of U.P. and others have been filed
at Allahabad, whereas Writ-A No. 21232 of
2021, Lalmani Ram v. State of U.P. and
others and Writ Petition No. 1226 (SB) of
2018, Padma Shekhar and others v. State of
U.P. & others have been filed at Lucknow.

(35) With regard to the anomalies
caused due to determination of the seniority
amongst the employees of the U.P.
Subordinate
Inspection
Branch,
Writ
Petition No. 15196 of 2016, Shiv Nandan
Singh v. State of U.P. & others has been
filed at Allahabad wherein an order dated
05.04.2016 was passed to the extent that till
31.07.2016,
the
final
seniority
list
appended to the order of Director of
Education (Basic), Uttar Pradesh, Lucknow
dated 12.02.2016 shall not be implemented.

(36) Further, it reveals from the
record that a Committee was constituted
by the State Government vide its Office
Memorandum dated 05.10.2021 under
the Chairmanship of Special Secretary,
Department of Secondary Education,
U.P., Lucknow and the said Committee
has submitted its recommendation on
26.10.2021.

(37) From the record, it also comes
out that the issue in the present writ petition
is not only related to the determination of
quota of promotion amongst the employees
of the Department of Secondary Education
and the Department of Basic Education but
it also involves the complex exercise of restructuring of cadre and a policy decision is
required to be taken in the matter. By
moving an application dated 01.11.2021,
the opposite party No.1 prays that interest
of justice would suffice, if this Court
grants reasonable time to complete the
process of amendment in the Rules of
1992 and re-structure the cadre by
making necessary amendments in the
Rules of 1992 and to take a decision in
terms of the order dated 14.07.2021
passed by this Court.

(38) On 18.10.2019, 22.11.2019,
06.07.2021,
14.07.2021,
07.10.2021,
70 INDIAN LAW REPORTS ALLAHABAD SERIES
01.08.2023 and 28.10.2023, different Coordinate Benches have passed the following
orders for amendment in Rules, 1992 by
the
competent
authority.
For
ready
reference, they are reproduced as under:-

18.10.2019

"Heard Shri S. K. Kalia, learned
Senior Advocate assisted by Shri Birendra
Pratap Singh, learned counsel for the
petitioner and Shri Manjiv Shukla, learned
Addl. Chief Standing Counsel.

By means of the present writ
petition, the petitioners have challenged the
validity of Sub-rule 18 of Rule-5 of the
Uttar
Pradesh
Educational
(General
Education Cadre) Service Rules, 1992
(hereinafter referred to as "Service Rules,
1992").

The challenged has, broadly,
made on the ground that when the Service
Rules, 1992 was framed, at that point of
time, there were 470 posts of Headmasters
and 154 posts of Headmistresses. Keeping
in view the number of posts of Headmasters
and Headmistresses, the provision of
promotion to the post of Principal of
Government Inter College (Boys & Girls)
was made in the Service Rules, 1992.

As per provisions, 61% quota and
22% quota for Male Branch i.e. for
Headmasters and for Female Branch i.e.
for Headmistresses, respectively, was fixed
in the Service Rules, 1992 for promotion to
the posts of Principal of Government Inter
College.

The position has now been
changed
regarding
the
posts
of
Headmasters and Headmistresses and at
present, there are 1071 sanctioned posts of
the Headmistress and 867 posts of
Headmasters in the Government Inter
College and on account of fixation of 61%
quota of promotion for Headmasters, the
claim of the petitioners is defeating as
several junior persons to the petitioners
would be promoted on the post of Principal
of Government Inter College and being so,
the Sub-rule under challenge in the present
writ petition is in violation of Article 14 of
the Constitution of India.

Shri S.K. Kalia, learned Senior
Advocate assisted by Shri Birendra Pratap
Singh, Advocate submitted that the ratio
provided of 22% for the Headmistresses is
arbitrary, unreasonable and without any
rationale as the number of Headmasters
are much less than the Headmistresses in
the State in the Government Higher
Secondary Schools for Girls and Boys.

Shri S.K. Kalia, learned Senior
Advocate submitted that considering the
increased
number
of
the
posts
of
Headmistresses and the present number of
the posts of Headmasters as well as Subrule
under
challenge,
the
Director,
secondary Education, U.P., 8-Park Road,
Lucknow has already recommended the
State Government to provide the quota, as
per present sanctioned strength of the posts
of Headmistresses, for promotions to the
posts of Principal of Government Inter
College and in this regard, he placed
reliance on the letter dated 20.02.2019 as
contained in Annexure No.RA-1 to the
rejoinder affidavit.

Learned
Additional
Chief
Standing Counsel requests that he may be
granted a short time to seek instructions in
the matter particularly with respect to letter
dated 20.02.2019.

Time is granted to learned Addl.
Chief Standing Counsel for the said
purpose.

List in the week commencing
04.11.2019."

22.11.2019

"Vide order dated 18.10.2019,
the learned Additional Chief Standing
Counsel was directed to seek instructions
1 All. Alka Tiwari & Ors. Vs. State of U.P.
71
particularly with respect to the letter dated
20.2.2019
sent
by
the
Director
(Madhyamik) to the State Government
regarding amendment in U.P. Educational
(General Education Cadre) Service Rules,
1992 in order to remove discrepancies in
the quota meant for promotion of male and
female teachers on the post of Principal,
Government Intermediate Colleges.

Learned
Standing
Counsel
informs that he has not been able to get
complete instructions in the matter.

Learned Standing Counsel shall
seek complete instructions; particularly on
the point as to whether the State
Government is proposing to amend the said
rules in this regard and whether in the
meantime any promotions are going to be
made on the basis of existing rules.

List on 3.12.2019."

06.07.2021

"The matter is taken up through
video conferencing.

Vide order dated 22.11.2019, the
Court had directed the learned Standing
Counsel to seek complete instructions
particularly on the point as to whether the
state Government is proposing to amend
the U.P. Educational (General Education
Cadre) Service Rules, 1992 in order to
remove discrepancies in the quota meant
for promotion of male and female teachers
on the post of Principal, Government
Intermediate Colleges and whether in the
meantime, any promotions are going to be
made on the basis of existing rules.

Learned Standing Counsel has
not received any instructions.

He prays for and is allowed one
week and no more time to seek complete
instructions failing which the matter shall
be heard finally on the basis of pleadings
and documents available on record.

List on 14.7.2021."

14.07.2021

"Heard Mr. S.K. Kalia, learned
Senior Advocate assisted by Mr. Sameer
Kalia, learned counsel for the petitioners
and learned Standing Counsel on behalf of
the State.

Vide order dated 6.7.2021, we
had directed learned Standing Counsel to
seek instructions in the matter whether the
State Government is proposing to amend
the U.P. Educational (General Education
Cadre) Service Rules, 1992 in order to
remove discrepancies in the quota meant
for promotion of male and female teachers
on the post of Principal, Government
Intermediate Colleges and whether in the
meantime, any promotions are going to be
made on the basis of existing rules.

Learned
Standing
Counsel
appearing on behalf of the State has placed
before us the copy of instructions send to
him vide letter dated 13.07.2021 by the
Principal
Secretary,
Basic
Education,
Government of U.P. informing therein that
the opinion from the Madhyamik Shiksha
Vibhag are awaited and there is a proposal
to amend the said Rules.