# Dr. Poonam Khare v. State of U.P. and others

- **Citation:** (2001) 1 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-04-07
- **Case number:** By the Court 1. Advertisement No. 29 of 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-poonam-khare-v-state-of-u-p-and-others-39240
- **Pages:** 8

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
164
cancellation of the Caste Certificate
suffers from violation of the principles of
natural justice.

8. The impugned order dated 7th
August,
2000
cancelling
the
Caste
Certificate accordingly stands quashed
and set aside. This will, however, not
restrain the respondent authorities to take
appropriate action in accordance with law.
The petition accordingly succeeds and the
writ petition is allowed.

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By the Court
1. Advertisement No. 29 of 2000
issued by the U.P. Higher Secondary
Education
Service
Commission,
Allahabad in so far as it pertains to the
post of Lecturer in Geology in P.P.N.
College, Kanpur is sought to be quashed
by means of this petition under Article
226 of the Constitution of India. The
petitioner who is working in the college
as an Anshkalik teacher appointed as such
by the management with the approval of
the Director, Higher Education Service
Commission in view of the provisions
contained in Government Order No. 467
(1)
Sattar-2-98-3(9)/93
T.C.
dated
7.4.1998, claims that she is eligible and
fully qualified for being appointed as
Lecturer Geology but stands precluded
from applying to the post in question
because of the reason that it has been
illegally reserved for scheduled caste
candidate.

2. It has been submitted by Sri
Ashok Khare, Advocate appearing for the
petitioner that the sole vacancy in the post
1All] Dr. Poonam Khare V. State of U.P. and others 165
of Lecturer in Geology mentioned in
the impugned advertisement pertains to
the P.P.N. College, Kanpur wherein there
are only two sanctioned posts of Lecturer
in the concerned discipline which cannot
be subjected to reservation and roster
provided in the U.P. Public Services
(Reservation
for
Scheduled
Caste,
Scheduled Tribe and other Backward
Classes) Act, 1994 (hereinafter referred to
as the U.P. Act No. 4 of 1994) for in order
to apply the reservation and roster
provided under the Act, there must exist
at least five vacancies in the particular
discipline/subject.
Reliance
has
been
placed on Government Order No. 780/1510-95(18)/94
Shiksha
Anubhag-10,
Lucknow
dated
6th
March,
1995
(Annexure no. 14 to the writ petition.)

3. The submission, in our opinion, is
based
on
misconstruction
of
the
Government Order aforestated which was
issued in answer to queries made by
certain
Universities
as
to
whether
reservation as provided in U.P. Act. No.4
of 1994 would apply to a single post and
if not what should be the minimum
number of posts in a given service in
order to attract reservation as provided
under the U.P. Act.No. 4 of 1994. The
Government Order aforestated reads thus:

"

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4. It is evident from the Government
order aforestated that reservation is not
applicable to a single post cadre. In other
words where there is a single post created
or sanctioned in a cadre reservation will
not apply to such post. In service
jurisprudence, the term 'cadre' has a
definite legal connotation. Fundamental
R. 9(4) defines the word 'cadre' to mean
the strength of a service or par5t of a
service sanctioned as a separate unit. In
the legal sense, the word 'cadre' is not
synonymous with 'service'. The legal
position stated in the Government Order
that reservation would not apply to a
single post cadre is quite in conformity
with the law declared by the Supreme
Court
in
Dr. Chakradhar Paswan
Versus State of Bihar1.' In that case
Bihar Public Service Commission had
invited applications for the posts of
Deputy Director (Homeopathic) in the
Directorate
of Indigenous Medicines,
Health Department, State of Bihar from
scheduled
caste
candidates
Dr.
Chakradhar Paswan, a scheduled caste
candidate,
was
selected
by
the
Commission and consequently appointed
by the State Government vide order dated
30.5.1979.Validity of the advertisement
issued by the Bihar Publice Service
Commission as also appointment of Dr.
Chakradhar Paswan was questioned in the
High Court by Dr. Kameshwar Prasad, a
candidate belonging to general class, on
the ground that a single post was not
liable to be reserved Admittedly, in the
Directorate
of Indigenous Medicines,
Health Department of State of Bihar,
there was one sanctioned post of Director
on which one Dr. Nagesh Dwivedi had
already been appointed on ad-hoc basis.
In addition to the post of Director there

1 AIR 1988 SC 959
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
166
were two posts initially in the Directorate
of Indigenous Medicines. The system was
initially a part of the Health Department
of Government of Bihar. Subsequently the
State Government on 6.5.1978 directed
creation of a separate Directorate of
Indigenous Medicines. The Director being
from one of the system of medicines
consisting of Ayurvedic, Unani and
Homeopathic. At the time of creation of
the separate Directorate, the Government
sanctioned two posts of Deputy Directorsone for each of the two remaining
systems. The State Government by its
circular dated 8.9.1975 had prescribed the
50 point roster to implement the policy of
reservation to posts and appointments for
members of the backward classes under
article 16(4) of the Constitution. It was
laid down therein, having regard to the
language used in the Government Order,
that "if in any grade, there is only one
vacancy for the first time, then it will be
deemed to be unreserved and for the
second time also, if there be only one
vacancy, then it will be deemed to be
reserved." It would appear from the facts
of that case that a proposal was made by
the Joint Secretary to the Government,
General
Administration
Department
(Personnel) for reservation of the post of
Deputy
Director
(Homeopathic)
for
members of the scheduled castes . In
making this proposal the post of Director
of Indigenous Medicines was taken into
reckoning for applying the 50 point roster.
Since the post of Director which had been
filled by Dr. Nagesh Dwivedi was treated
as unreserved, the vacancy in the post of
Deputy
Director
(Homeopathic)
was
treated by the Government as reserved for
scheduled caste according to 50 point
roster treating it to be the second vacancy
and the Bihar Public Service Commission,
accordingly, had advertised the post of
Deputy
Director
(Homeopathic)
as
reserved
for
scheduled
caste.
Dr.
Chakradhar Paswan a scheduled caste
candidate was selected for, and appointed
on, the post. But on a writ petition filed
by Dr. Kameshwar Prasad, the Patna High
Court
quashed
the
impugned
advertisement as also the appointment of
Dr. Chakradhar Paswan to the post of
Deputy Director (Homeopathic) on the
ground that the post was illegally reserved
for scheduled caste. The High Court took
the view that (i) reservation to the only
post of Deputy Director (Homeopathic)
for members belonging to the scheduled
caste amounted to 100% reservation; (ii)
the
two
posts
of
Deputy Director
(Homeopathic)
and
Deputy
Director
(Ayurvedic)
could
not
be
clubbed
together for purposes of reservation of
posts and; (iii) the order reserving the post
of
Deputy
Director
(Homeopathic)
infringed the principles embodied in the
Government circular introducing 50 point
roster according to which the first
vacancy should have been filled from
amongst general candidates i.e. to say it
should have been treated as unreserved.
The Supreme Court held that the post of
Director and the post of Deputy Director
do not constitute one cadre and therefore,
the vacancy in the post of Deputy
Director (Homeopathic) being the first
one in the cadre of Deputy Directors
ought to have gone to the general class.
The relevant observations as under

" According to the 50 point roster, if in a
particular grade a single post falls vacant,
it should, in the case of first vacancy, be
considered as unreserved i.e., general and
on the second occasion when a single post
again falls vacant, the same must be
treated as reserved. Admittedly, the post
of the Director is the highest post in the
1All] Dr. Poonam Khare V. State of U.P. and others 167
Directorate of Indigenous Medicines and
is carried in the Higher pay scale or grade
of Rs. 2225-75-2675 while the posts of
the Deputy Directors are carried in the
higher pay scale or grade of Rs.1900-752500. In service jurisprudence, the term
'cadre' has a definite legal connotation. In
the legal sense, the word 'cadre' is not
synonymous with 'service' Fundamental
R.9(4) defines the word' cadre to mean
the strength of a service or part of a
service sanctioned as a separate unit. The
post of the Director which is the highest
post in the Directorate, is carried on a
higher grade or scale, while the posts of
Deputy Directors are borne in a lower
grade or scale and therefore constitute two
district cadres or grades. The conclusion
is irresistible that the posts of the Director
and those of the Deputy Directors
constitute different cadres of the Service.
It is manifest that the post of the Director
of Indigenous Medicines, which is the
highest post in the Directorate carried on
a higher grade or scale, could not possible
be equated with those of the Deputy
Director on a lower grade or scale, In
view of this, according the 50 point roster,
if in a particular cadre a single post falls
vacant, it should, in the case of first
vacancy, be considered as general. That
being so, the State Government could not
have directed reservation of the post of
Deputy Director (Homeopathic) which
was the first vacancy in a particular cadre
i.e. that of the Deputy Directors, for
candidates belonging to the scheduled
castes. Such reservation wad not in
conformity with the principles laid down
in
the
50
point
roster
and
was
impermissible under Art. 16(4) of the
Constitution and clearly violative of the
guarantee enshrined in Art; 16(1) of equal
opportunity to all citizens relating to
public employment."
5. The question as to whether
isolated posts could be subjected to the 50
point roster, albeit mooted, was left
undecided. It was held as under:

" It is a moot point whether the
isolated posts like those of the Deputy
Directors can be subjected to the 50 point
roster by the rotational system. We refrain
from expressing any opinion on this
aspect, as it does not arise in the present
case, Assuming that the 50 point roster
applies, admittedly, the first vacancy in
the cadre of Deputy Directors was that of
Deputy Director (Homeopathic) and it
had to be treated as unreserved, the
second reserved and the third unreserved.
The first vacancy of the Deputy Director
(Homeopathic) in the cadre being treated
as unreserved according to the roster, had
to be thrown open to all, A Candidate
belonging to the scheduled caste had
therefore to compete with others."

6. As regards the minimum number
of posts required for invoking the law of
reservation
it
is
provided
in
the
Government
Order
aforestated
that
reservation would apply in recruitments in
respect of five or more posts in a cadre. In
the present case admittedly there are two
sanctioned posts of Lecturer in the
Department of Geology in P.P.N. College,
Kanpur out of which only one post which
is the subject matter of impugned
advertisement is reserved. There must be
other posts in the college in the cadre of
Lectures. The present is, there fore, not a
case of single post cadre. Reservation of
one of the two posts in the Geology
Department does not create a monopoly
nor does it violate the guarantee of
equality of opportunity contained in
clauses 1 And 2 of Article 16 of the
Constitution of India Dr. Chakradhar is, in
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
168
our opinion, an authority on the principles
that, "if there is only one post in the
cadre, there can be no reservation with
reference
to
that
post
either
for
recruitment at the initial stage or for
filling up future vacancy in respect of that
post." Section 3 of U.P. Act No. 4 of 1994
provides 21% reservation in favour of the
scheduled caste candidates in 'public
service and posts." Recruitment to which
must be made in accordance with the
roster prescribed by the State Government
by a notified order i.e. notification no.
481/Ka-1-94-1-1-94 dated March 29,
1994 published in the U.P. Gazette, Extra,
Parti (Ka) dated 29th March, 1994 being
annexure no.10 to the writ petition. The
term "Public services and posts." As
defined in Section 2© of U.P. Act No.4 of
1994, means the services and posts in
connection with the affairs of the State
and includes, among others," services and
posts in an educational institution owned
and controlled by the State Government
or which receives grant in aid from the
State Government, including a university
established by or under a Uttar Pradesh
Act, except an institution established and
administered by minorities referred to in
clause
(1)
or
Article
30
of
the
Constitution." The word 'services' in the
context would mean 'services of teachers'
in P.P.N. College, Kanpur which is
affiliated to a University established
under the U.P. State Universities Act,
1973, "Teachers" in the State Universities
are classified as Lectures, Readers and
Professors. In affiliated colleges there are
only
two
categories:
Lecturers
and
Principals.
True,
under
personal
promotion scheme visualized in Section
31-A of the U.P. State Universities Act,
1973, status of Reader is, perhaps,
admissible to Lecturers of the affiliated
college as well but this will not make any
difference. The word 'Posts' in Section 3
of the U.P. Act No. 4 of 1994 in relation
to affiliated colleges would mean teaching
and non teaching posts in different
cadres/grades. The posts of Lectures, in a
College affiliated to a University would
be subject to reservation on a roster point
prescribed under the Act. The Act will in
our opinion, apply whenever there is
plurality of posts. The Government Order
cannot over ride the Act. Admittedly,
There are two sanctioned posts of
Lecturer in the Department of Geology,
P.P.N. College, Kanpur. The vacancy in
question being the first vacancy in the
Department of Geology must go to
reserved category as per roster prescribed
under Section 3 (5) of the U.P. Act 4 of
1994.

7. Shri Ashok Khare submits that
each subject or discipline of study in a
college should be treated as a separate
'cadre' for applying reservation and roster
prescribed under the U.P. Act 4 of 1994.
Reliance was placed by Sri Khare on Dr.
Suresh Chandra Verma and Others
Versus
The
Chancellor,
Nagpur
University and others2 in support of his
contention that reservation should be
made 'subject wise. In order to appreciate
the law laid down by the Apex Court in
Suresh Chandra Verma (Supra) it would
be necessary to set out the facts of that
case. The University of Nagpur had in
that case invited applications for the total
number of 77 posts of teachers which
included posts of Professors, Readers and
Lecturers in different subjects. The notice
mentioned
the
total
number
of
reservations
category
wise
but
not
subject-wise. A question arose as to
whether general reservation but not

2 (1990) 4 SCC 55
1All] Dr. Poonam Khare V. State of U.P. and others 169
subject-wise. A question arose as to
whether general reservation category-wise
instead of subject wise was illegal. In the
High Court there was a difference of
opinion between two Division Benches-
one taking the view that the postwise
reservation was not necessary whereas
another Division Bench differed with the
said view and sent the papers to the Chief
Justice for referring the matter to a larger
bench. The issue referred to the larger
Bench was "Is non-reserving the posts of
University teachers subjectwise in the
employment notice a breach of letter and
spirit of reservation policy contained in
Section 77c read with Section 57 of the
Act?" The Full bench held that general
reservations were in breach of the
provisions of the Act and against the
reservation policy and, therefore, illegal.
The view taken by the Full Bench of the
High Court was approved by the Supreme
Court in the following words:

"According to us, the word "Post" used in
the context has a relation to the faculty,
discipline, or the subject for which it is
created. When, therefore, reservations are
required to be made "in posts", the
reservations have to be post wise i.e.
subject wise. The mere announcement of
the number of reserved posts is no better
than
inviting
applications
for
posts
without mentioning the subjects for which
the posts are advertised, when, therefore
Section57 (4) (a) requires that the
advertisement or the employment notice
would indicate the number of reserved
posts,
if
any,
it
implies that the
employment notice cannot be vague and
has to indicate the specific post, i.e. the
subject in which the post is vacant and for
which the applications are invited from
the candidates belonging to the reserved
classes. A non-indication of the post in
this manner itself defeats the purpose for
which the applications are invited from
the reserved category candidates and
consequently negates the object of the
reservation policy" (Emphasis is ours)".

And further:

"It is common knowledge that the
vacancies in posts in different subject
occur from time to time according to the
exigencies of the circumstances ad they
arise unequally in different posts. There
may not be vacancies in one or some
posts whereas there may be a large
number of vacancies in other posts. In
such circumstances, it is not possible to
comply with the minimum reservation
percentage of 34 Vis-à-vis each post. It is
for this reason the at the resolution states
that although minimum percentage of
reserved posts may not be filled in one or
some posts, it will be enough if in that
year
it
is
filled
in
taking
into
consideration
the
totals
number
of
appointments in all the posts. This,
however, does not absolve the appointing
authority from advertising in advance the
vacancies in each post and the number of
posts in such vacancies in each post and
the number of posts in such vacancies
meant for the reserved category, and
inviting applications from the candidates
belonging to the reserved and unreserved
a categories with a clear statement in that
behalf, In fact, the overall minimum
percentage has to be kept in mind, as
stated in the resolution, at the time of
issuing the employment notice or the
advertisement as the case may be"
(Emphasis is ours).

8. The core and essence of the ratio
decidendi of the above case is that notice
for recruitment should not be vague and
rather it must specifically state the post
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
170
actually meant for reserve category. It
does not rule against clubbing of posts
belonging to a given cadre/grade so as to
workout the total number of reserved
posts. In the instant case advertisement
very clearly states the number of posts
reserved for scheduled caste 'subjectwise.' The advertisement, in our opinion,
is well in accordance with law laid down
by the Supreme Court in Dr. Suresh
Chandra Verma's case. The argument
advanced by Sri Ashok Khare, Senior
Advocate that computation of the number
of reserved posts should be subjectwise
does not appeal to us. In fact the total
number of reserved posts under Section 3
of U.P. Act No. 4 of 1994 is to be worked
out on the basis of the total vacancies in a
given cadre and recruitment to such
number of reserved posts should be made
in accordance with roster prescribed
under sub Section (5) of Section 3 of the
U.P. Act No. 4 of 1994. 'Cadre' in
relation to teaching staff of affiliated
colleges means the cadre of 'Lecturer' In
our opinion, posts of Lecturers in various
subjects should be clubbed in order to
work out the exact number of posts to be
reserved under the Act. 4 of 1994 and
then it should be determined as to which
post is to be reserved and for whom. That,
in our opinion, appears to be the thrust of
the exposition laid down in Dr. Suresh
Chandra.

9. The other decision on which
reliance was placed during the course of
argument is the case of P.G. Institute of
Medical
Education
and
Research
Versus Faculty of Associations and
others3. The question that arose in the
said case was as to whether in a single
cadre post reservation for the backward

3 JT 1998(3) S.C.223
class. can be made directly or by applying
rotation of roster point. The said decision
reiterates the law laid down in Dr.
Chakradhar Paswan's case and is an
authority on the principle that reservation
will not apply in respect of a single postcadre for, if applied, it would result in
exclusion of general candidates and there
would be cent percent reservation for
backward classes which is not permissible
within the constitutional framework. The
observation made therein that "until there
is plurality of posts in a cadre, the
question of reservation will not arise"
necessarily implies that if there is a
plurality of posts in cadre or grade,
reservation
will
apply.
In
Indira
Sawhney's4 case it has been propounded
by a nine Judge Bench of Supreme Court
that
there
should
be
adequate
representation in each cadre and each
grade. In our opinion, therefore, the
number of reserved posts is to be worked
out on the basis of posts/is to be worked
pit pm the nasos pf [posts/vacancies in
each cadre and if there exists a plurality of
posts in a cadre/grade the advertisement
must specifically state as to which post in
the cadre/grade is reserved. In other
words the advertisement must state the
reserved post with reference to the subject
of study in a cadre. Admittedly, there
exists a plurality of posts both in the
concerned discipline as also in the
cadre/grade of Lectures . It being not a
case of single post cadre, the law of
reservation and roster has rightly been
applied by the respondents Advertisement
in question does not suffer from any
infirmity and warrants no interference by
the Court. The following observations
made by the Apex Court in State of U.P.

4 AIR1993 SC 477
1All] Mukesh Glass Industries V. Station Master, Firozabad (N.Railway) and others 171
vs. Dr. Dina Nath Shukla5 on which
reliance was placed by the learned
counsel too should be construed in the
like manner:

"Thus it could be seen that if the
subjectwise recruitment is adopted in each
service or post in each cadre in each
faculty, discipline specialty or super
specialty, it would not only be clear to the
candidates who seek recruitment but also
there would not be an over-lapping in
application of the rule of reservation to
the service or posts as specified and made
applicable by Section 3 of the Act. On the
other hand, if the total posts are advertised
without subjectwise specifications, in
every faculty, discipline, specialty or
super specialty it would be difficult for
the candidates to know as to which of the
posts be available either to the general or
reserved candidates or whether or not they
fulfill or qualify the requirements so as to
apply for a particular post and seek
selection."
10.

The
words
'subject-wise
recruitment' in Dina Nath Shukla's case
and the words the reservations have to be
pose wise i.e., subject-wise used in the
case of Dr. Suresh Chandra Verma mean
only
this
that
the
recruitment
notice/advertisement must clearly state
the
posts
i.e.
the
subject/discipline
reserved under the U.P. Act 4 of 1994.
These expressions, in our opinion, do not
sup0port the contention that total number
of reserved posts should be worked out
subject-wise and not cadre/grade wise.
While appreciating the ratio laid down in
the above cases, the question raised for
consideration before the Apex Court must
be borne in mind. Nothing in these

5 (1997) 7 SCC 662
decisions precludes linking of posts in the
same grade/cadre, though in different
subjects for the purpose of working out
the
quota
for
reserved
category
candidates. It must also be borne in mind
that selection is made in respect of
vacancies at the State level Sub section
(3) of Section 12 of U.P. Higher
Education Services Commission, Act,
1980 provides for notification to the
Commission " a subjectwise consolidated
list of vacancies from all colleges." This
also suggests integration of vacancies in a
grade/cadre for the purpose of working
out the number of reserved posts.

In the result, the petition being
devoid of merits, fails and is dismissed in
limine.
Petition Dismissed.

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