# by L.R v. Aftabuddin Khan &

- **Citation:** (2013) 1 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-21
- **Case number:** Civil Misc. Writ Petition No. 55196 of 2007
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/by-l-r-v-aftabuddin-khan-42526
- **Pages:** 4

## Headnote

U.P. Intermediate Education Act 1921,
Chapter
III
Regulation-2-out
of
5
sanctioned post of class III employee
including head clerk-2 already occupied
by
direct
promotee-under
50
%
promotion quota 2.05 posts round of as
3-petitioner being senior most class 4th
employee-promoted as clerk-disapproval
by DIOS on ground single post fall under
SC/ST quota-held-against single post-no
reservation
available-hence
existing
vacancy can not be filled up either by
direct recruitment or under reserve
quota-except by promotion.

Held: Para-11

 In the present case admittedly only one
post is available and the same could not
have been filed up by Scheduled Caste
candidate either in a promotee quota or
by releasing it for being filled up by
direct recruitment.

Case Law discussed:
(1998) 2 SCC 214; (1998) 4 SCC 1; 2010 (3)
ESC 2091; (2006) 6 SCC 430

## Text

1 All Ram Autar Sharma Vs. District Inspector of Schools and Others
433
 2012, where in para 21 of the judgment,
this Court said:

"....it is not the number of witnesses
examined which would be of any
importance but it is the reliability and
credibility of a witness or evidence which
would determine whether the prosecution
has been successful in substantiating the
guilt against accused or not. Even a single
piece
of
evidence,
whether
oral,
documentary or circumstantial, if credible
and trustworthy, is sufficient to record
conviction against a person."

10. I also find support from Apex
Court's decision in Smt. Chandan Bilasini
(Dead) by L.R. Vs. Aftabuddin Khan &
Ors., AIR 1996 SC 591.

11. All other ingredients necessary for
making an adoption valid in accordance
with provisions of Hindu Adoption and
Maintenance Act, 1956 have been proved.
The Revisional Court did not find any
otherwise infirmity except the fact that,
according to him, in absence of adoptive
mother, who was alive but not produced as
witness, the valid adoption whether valid,
would remain unproved. This approach of
Revisional Court, as already discussed, I am
not inclined to approve. The judgment of
Revisional Court thus is unsustainable and
deserve to fall.

12. The writ petition is accordingly
allowed. The impugned order dated
31.05.2010 (Annexure No.7 to the writ
petition) passed by Additional District
Judge II, Kanpur Nagar, is hereby set
aside. The judgment dated 4.9.2009 of
Trial Court is restored and confirmed.

13. No order as to costs.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR,J.

Civil Misc. Writ Petition No. 55196 of 2007

Ram Autar Sharma

...Petitioner
Versus
District Inspector Of Schools And Others

 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.

U.P. Intermediate Education Act 1921,
Chapter
III
Regulation-2-out
of
5
sanctioned post of class III employee
including head clerk-2 already occupied
by
direct
promotee-under
50
%
promotion quota 2.05 posts round of as
3-petitioner being senior most class 4th
employee-promoted as clerk-disapproval
by DIOS on ground single post fall under
SC/ST quota-held-against single post-no
reservation
available-hence
existing
vacancy can not be filled up either by
direct recruitment or under reserve
quota-except by promotion.

Held: Para-11

 In the present case admittedly only one
post is available and the same could not
have been filed up by Scheduled Caste
candidate either in a promotee quota or
by releasing it for being filled up by
direct recruitment.

Case Law discussed:
(1998) 2 SCC 214; (1998) 4 SCC 1; 2010 (3)
ESC 2091; (2006) 6 SCC 430

(Delivered by Hon'ble B.Amit
Sthalekar, J.)
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

1. By this writ petition, the
petitioner is challenging the order dated
20.7.2010, whereby, the D.I.O.S. has
directed that since the reservation quota in
class III post is not completed, therefore,
the post in question should be released for
direct recruitment relying upon the G.O.
dated 18.12.1990 for promotion in class
III post.

2. Briefly stated the facts of the case
are that there is an Intermediate College
known as Shambhu Dayal Inter College,
Ghaziabad (hereinafter referred to as 'the
Institution') which is recognised under the
U.P. Intermediate Education Act, 1921
and the Payment of Salary Act, 1971 is
also applicable thereto. The petitioner is
working on the post of Class-IV employee
in
the
Institution.
There
are
five
sanctioned posts in the cadre of class-III
including the post of head clerk. One Sri
Prakash
Chandra
(OBC)
has
been
promoted and one Sri Panna Lal Gupta
has been promoted on the post of
Assistant Clerk from class-IV. Out of the
two remaining posts of Assistant Clerk
one Sri Gajendra Kumar Mittal and Sri
Rajeev Kumar Tyagi have been appointed
by direct recruitment. Thus, according to
the petitioner one post of Assistant Clerk
is lying vacant due to the retirement of Sri
B. P. Mangalik on 30.11.2006.

3. It is further pointed out that for
promotion for the post of Assistant Clerk
in class-III against the 50% promotee
quota, the Committee of Management
submitted the requisite papers before the
D.I.O.S., Ghaziabad on 24.2.2007 for
approval.
The
D.I.O.S.
Ghaziabad,
however, declined to grant approval and
instead by the impugned order dated
27.10.2007 has directed that the single
post in the promotee quota of class III be
filled up by direct recruitment. A
reference has been made to the G.O. dated
18.12.1990.

4. I have heard Sri Indra Raj Singh,
learned counsel for the petitioner and the
learned Standing Counsel representing
respondents 1 to 4. Notices were served to
the respondent no.5 on 15.4.2011 but till
date no one has appeared on behalf of
respondent no.5.

5. The facts as stated in para 4 of the
writ petition regarding the number of
posts and the persons working against the
respective posts had not been denied in
para 3 of the counter affidavit rather they
are admitted as being matter of record.
However, in the counter affidavit the only
reason given is that since there was a
shortfall of S.C. quota, therefore, the
D.I.O.S. by the impugned order has
directed that one post in the promotee
quota of Assistant Clerk is to be filled up
by direct recruitment from the S.C.
candidate.

6. The contention of the respondents
is fallacious in view of the legal position
settled by the Supreme Court reported in
(1988)
2
SCC
214,
Chakradhar
Paswan(Dr.) Vs. State of Bihar and the
Constitution Bench in the case reported in
(1998) 4 SCC 1, Post Graduate Institute
of Medical Education and Research,
Chandigarh Vs. Faculty Association
and others that the reservation cannot be
applied to a single post and therefore, in
view of the said judgment the single post
of Assistant Clerk could not be filled up
through Scheduled Caste Candidates by
releasing it to the direct recruitment
quota.
1 All Ram Autar Sharma Vs. District Inspector of Schools and Others
435

7. Even otherwise the total cadre
strength in class III admittedly is 5 posts,
out of which two and half post would be
available for being filled up. In terms of
Chapter III Regulation 2 of the U.P.
Intermediate Education Act, 1921, while
calculating the number of posts for
distributing the same for promotee quota
or for direct recruitment .5 shall be treated
as one in terms of the explanation to
Regulation 2 (2) of Chapter III. It is not in
dispute that two posts of promotee quota
have already been filled up and only one
post remains.

8. Sri I. R. Singh further referred to
the judgment of the Full Bench of this
Court reported in 2010 (3) ESC 2091
(Heera Lal Vs. State of U.P.), wherein,
the Full Bench relying upon the Supreme
Court decision in the case of R.S. Garg
Vs State of U.P (2006) 6 SCC 430 has
held as follows:

"25.
The
decision
in
R.K.
Sabharwal's case is a five judges
pronouncement which still holds the field.
The question of giving the benefit or
reservation in excess of the percentage of
quota of reservation has been put to rest
by the decision in the case of R.S. Garg V.
State of U.P. (2006) 6 SCC 430 .
Paragraph 40 which is quoted herein
below:

"We are not concerned with the
reasonableness or otherwise of the
percentage of reservation. 21% of the
posts
have
been
reserved
for
the
Scheduled Tribe (Sic Caste) candidates by
the State itself. It, thus, cannot exceed the
quota. If is not dispute that in the event of
any conflict between the percentage of
reservation and the roster, the former
shall prevail. This, in the peculiar facts
and circumstances of this case, the roster
to fill up the posts by reserved category
candidates, after very four posts, in our
considered opinion, does not meet the
constitutional requirements."

9. However relevant para 32 the Full
Bench decision reads as follows:

"32. There may be cases where there is
a rule making provision for different
sources of recruitment within the same
cadre, then reservation has to be applied to
the posts available for being filled up in
accordance with the source of recruitment.
This issue may arise in the context where a
candidate is not available for filling up the
post by way of promotion and the same has
to be diverted to be filled up by direct
recruitment. Such a situation will arrive in
cases where the number of posts may be five
or more so as to make the rule of
reservation applicable. Taking for instance
were there are say 8 posts in a cadre and
the rule is, as presently involved, namely
that 50% posts have to be filled up by way
of promotion, in that event four posts have
to be filled up by promotion and four by
direct recruitment. The rule of reservation
for appointment by way of promotion is
availably only to scheduled castes in the
State of U.P. and no such rule is available
for other backward categories. They are
entitled to the benefit of reservation only in
the process of direct recruitment. In the
example given above where four posts out
of eight are to be filled up by direct
recruitment one post will have to be given to
the other backward category keeping in
view the 27% mandate of reservation in
favour of such category under the 1994 Act.
Against four posts of promotion quota,
reservation to a scheduled caste category
cannot be granted as there as to be a
minimum of five posts for applying the 21%
436 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
reservation for promotion. In a given
situation where no other candidate of any
category is available for promotion against
the four posts, then such a vacancy to be
filled up by promotion may have to be
carried over for direct recruitment. This
would bring about a change of strength in
the source of recruitment thus fluctuating
the strength of the post available by direct
recruitment. A scheduled caste candidate
would therefore, get the benefit of
reservation if the cadre strength is
increased to five for direct recruitment,
even though the same candidate would not
get the benefit of reservation if the
promotion quota of 50% is adhered to. It
would be appropriate to point out that
taking a case where there are five posts for
being filled up by promotion and five by
direct recruitment in the cadre then in such
an event the rule of reservation to the extent
of 21% in both the sources can be
conveniently
made
applicable
without
disturbing the ratio in either of the sources."

10. This Court in Writ Petition (A)
No. 47207 of 2008, Amarnath Goswami
Vs. State of U.P. & others, wherein also
similar controversy was involved, has held
as under:

"This G.O. came up for consideration
before this Court in the case of Ramesh
Chandra Yadav Vs. Director of Education
U.P. (Madhyamik Allahabad) and others
reported 2004 (1) E.S.C. (Alld.) 324 and
this Court was pleased to hold that the said
G.O. has no application in the case. The
relevant paragraph 6 of the said judgment
is quoted as under:

"I am of the view that since the
vacancy has been caused from the
promotion quota and since there is a 50%
quota
for
promotion
of
Class
IV
employees
under
the
Intermediate
Education Act and Regulations, the
vacancy in question is to be filled up by
promotion only. The District Inspector of
Schools is not authorised under any Act to
convert the post of promotion quota into
direct recruit quota."

11. In the present case admittedly only
one post is available and the same could not
have been filed up by Scheduled Caste
candidate either in a promotee quota or by
releasing it for being filled up by direct
recruitment.

12. Secondly, the post in the promotee
quota, could not have been released to the
direct recruitment quota for being filled up
by a Scheduled Caste candidate. This view
has been taken by me in the case of Amar
Nath Goswami (supra) and C.M.W.P.No.
59429 of 2006, Mahendra Pal Yaduvanshi
Vs. State of U.P. and others and I see no
reason to take any other view.

13. Taking into consideration all the
above facts and law laid down by the
Supreme Court as well as the Full Bench
and Single Judge decisions the impugned
order dated 27.10.2007 is quashed.

14. The writ petition is allowed.

15. A direction is issued to the
respondent no.1 to consider the matter for
grant of approval to the appointment of
the petitioner in the class II post in the
promotee quota of 50%. This exercise
shall be completed by the respondent no.1
within a period of one month from the
date of certified copy of this order is
received by him.
---------