# Mahendra Kumar Gond v. District Inspector of Schools, Azamgarh and others

- **Citation:** (2009) 2 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-06
- **Case number:** Special Appeal No.1112 of 2009
- **Bench:** C.K. Prasad, C.J. A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-gond-v-district-inspector-of-schools-azamgarh-and-others-41435
- **Pages:** 5

## Headnote

U.P. Intermediate Education Act, 1921
Section 16-G-Chapter III Regulation -2Promotion-Quota-vacancy of Class III
post occur in Intermediate College-under
50%
Quota
No
SC/S.T.
candidates
available in the institution-all the posts
occupied
by
General
candidates
appointment by direct recruitment-heldproper.

Held: Para 15

Therefore, we do not find any substance
in the submission of Mr. Singh.

Mr. Singh, lastly attempted to assail the
appointment of the appellant. As the
selection of the appellant is under
consideration
of
the
Regional
Committee, we do not want to express
any opinion in this regard. However, we
hasten to add that the writ petitionerrespondent no.5, is not a member of the
Scheduled Caste category and, therefore,
is not eligible to be promoted to the
post, which has been reserved for the
Scheduled Caste category. This is an
additional
reason
why
we
are
not
inclined to entertain the said submission.
Case law discussed:
AIR 2007 SC 71.

## Text

2 All] Smt. Ramawati V. State of U.P. and others

709

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal No.1112 of 2009

Mahendra Kumar Gond
...Appellant
Versus
District Inspector of Schools, Azamgarh
and others

 ...Opposite Parties

Counsel for the Appellant:
Sri Ranjeet Asthana

Counsel for the Opposite Parties:
Sri Indra Raj Singh
S.C.

U.P. Intermediate Education Act, 1921
Section 16-G-Chapter III Regulation -2Promotion-Quota-vacancy of Class III
post occur in Intermediate College-under
50%
Quota
No
SC/S.T.
candidates
available in the institution-all the posts
occupied
by
General
candidates
appointment by direct recruitment-heldproper.

Held: Para 15

Therefore, we do not find any substance
in the submission of Mr. Singh.

Mr. Singh, lastly attempted to assail the
appointment of the appellant. As the
selection of the appellant is under
consideration
of
the
Regional
Committee, we do not want to express
any opinion in this regard. However, we
hasten to add that the writ petitionerrespondent no.5, is not a member of the
Scheduled Caste category and, therefore,
is not eligible to be promoted to the
post, which has been reserved for the
Scheduled Caste category. This is an
additional
reason
why
we
are
not
inclined to entertain the said submission.
Case law discussed:
AIR 2007 SC 71.

(Delivered by Hon'ble C.K. Prasad, CJ.)

1.

Respondent
no.5-appellant,
aggrieved by order dated 29.6.2009
passed by a learned Single Judge in Civil
Misc. Writ Petition No.4380 of 2007, has
preferred this special appeal under Rule 5
Chapter VIII of the Allahabad High Court
Rules.

2. Shorn of unnecessary details, the
facts giving rise to the present appeal are
that the writ petitioner-respondent no.5, is
a Class-IV employee of Moti Lal Nehru
Smarak Inter College (hereinafter referred
to as 'the College'), which receives grantin-aid. On 28.2.2003, a vacancy of Clerk
in the College occurred due to the
retirement of the incumbent. There are
three posts of Clerks including the post of
Head Clerk out of which two are occupied
by the members of the General category.

3. Regulation 2 of Chapter III of the
Regulations made in exercise of the
power under Section 16-G of the U.P.
Intermediate Education Act, 1921, inter
alia, provides that 50% of the sanctioned
posts of Head Clerk and Clerk shall be
filled up by promotion from Class IV
employees.
Undisputedly,
respondent
no.5 does not belong to the reserved
category.
As
no
candidate
of
the
Scheduled Caste was available, the
District Inspector of Schools by order
dated 15.4.2005 took a decision to fill up
the post by direct recruitment from
amongst the members of the Scheduled
Caste and in the light of the aforesaid, an
advertisement was published in the
710 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Newspaper. The appellant, herein, who
happens to be a member of the Scheduled
Caste, offered his candidature and was
selected for the appointment. After the
said
selection,
matter
is
under
consideration of the Regional Committee.

4. Writ Petitioner-respondent no.5,
herein, filed a writ application, inter alia,
praying for a direction for his promotion
to the post of Clerk. Said writ application
was registered as Civil Misc. Writ
Petition No.69585 of 2005 (Vinod Kumar
Singh Vs. District Inspector of Schools
and others) and by order dated 9.11.2006,
this writ application was disposed of with
a direction to consider his claim. In the
light of the aforesaid order, the District
Inspector of Schools, considered his claim
and by order dated 4.12.2006, rejected his
representation.
He
challenged
the
aforesaid order in the writ application,
which has given rise to the present appeal.

5. It was contended before the
learned Single Judge that in view of
Regulation 2 (2) of Chapter III of the
Regulations, 50% of Class III post is to be
filled up by promotion and filling up the
said post by direct recruitment in the light
of
the
Government
Order
dated
18.12.1990 is illegal. The aforesaid
submission found favour with the learned
Single Judge and the learned Single Judge
has held that in view of the aforesaid
Regulation, 50% of the posts have to be
filled up by promotion and the same
cannot be filled up by direct recruitment.
The observation of the learned Single
Judge in this connection reads as follows:-

"It is not in dispute that the third
vacant Class III post was required to be
filled up by promotion in accordance with
Regulation 2 (2) contained in Chapter III
of the Act. What is, however, contended
by the respondents is that this vacant post
should be filled up by a Scheduled Caste
candidate and since no Scheduled Caste
candidate was available, the said post was
required to be filled by direct recruitment.
Regulation 2 (2) contained in Chapter III
of the Act clearly provides that 50% of
the Class III posts have to be filled up by
promotion
and
indeed
even
the
respondents do not dispute this position.
The Government Order dated 18th
December, 1990 which has been referred
in the impugned order has not been filed
either by the State or by the contesting
respondents and nor was it produced
before the Court at the time of hearing of
the petition. Even otherwise, it is not
possible
to
accept
the
contention
advanced by respondents as under the
relevant Regulation 2 (2) contained in
Chapter III of the Act at least one post has
necessarily to be filled up by promotion
and if this is not done, the said provision
would be rendered futile."

6. As would be evident from the
aforesaid passage of the judgment of the
learned Single Judge, the Government
Order dated 18.12.1990 was not produced
before him. Accordingly, the learned
Single Judge set aside the order impugned
in the writ application as also the
appointment of the appellant herein. The
learned Single Judge further directed the
Committee of Management to fill up the
vacant Class III post by promotion from
amongst the Class IV employees working
in the College.

7. Before we enter into the merit of
the case, it is expedient to consider the
reservation
policy
of
the
State
Government in regard to promotion. It is
relevant here to state that the U.P. Public
2 All] Mahendra Kumar Gond V. D.I.O.S., Azamgarh and others

711
Services
(Reservation
for
Scheduled
Castes/Scheduled Tribes/Other Backward
Classes)
Act,
1994,
provides
for
reservation in the public services and the
post, and by virtue of its definition under
Section 2 (c), it applies to educational
institutions owned and controlled by the
State Government or which receive grantin-aid. Section 3 thereof provides for
reservation
at
the
stage
of
direct
recruitment and sub-section (7) thereof
makes
applicable
such
prevalent
Government Orders that provide for
reservation against posts to be filled up by
promotion. In view of the aforesaid
provisions,
all
Government
Orders
providing for reservation in promotion
continue to be applicable till they are
modified or revoked.

8. It is relevant here to state that the
Government Order dated 18.12.1990
considered the issue of filling up such
vacancies reserved for the members of the
Scheduled Caste and Scheduled Tribe,
which remain unfilled due to their
unavailability. The aforesaid Government
Order, inter alia, provides that against
such posts where appointment is to be
made by promotion, and for which
reservation is provided, if the candidates
of the reserved category are not available,
same shall be filled up by direct
recruitment from amongst the members of
the said category. In the light thereof, the
District Inspector of Schools had taken a
decision to fill up the vacancy of the
Clerk by direct recruitment reserved for
the member of the Scheduled Caste and in
fact, an advertisement to that effect was
issued and in response thereof, the
appellant
herein
had
offered
his
candidature. Writ petitioner-respondent
no.5, neither challenged the said decision
of the District Inspector of Schools nor
the advertisement nor for that matter the
selection of the appellant herein. It is only
when the matter of his appointment was
before the Regional Committee, he chose
to file the writ application.

9. While assailing the judgment of
the learned Single Judge, Mr. Ranjit
Asthana, appearing on behalf of the
appellant, submits that in view of the
Government Order, which is saved by
Section 3 (7) of the U.P. Act No.4 of
1994,
all
the
Government
Orders
regarding promotion shall continue to be
applicable.
He
submits
that
the
Government Order dated 18.12.1990
clearly provides that when a candidate of
the reserved category is not available for
promotion, such post shall be filled up by
direct recruitment from amongst the
members of the said category. He submits
that in the light thereof, the decision was
taken to fill up the post of Clerk by direct
recruitment from amongst the members of
the Scheduled Caste and the appellant was
duly selected for appointment.

10. Mr. Indra Raj Singh, however,
appearing on behalf of respondent no.5,
submits that in view of Regulation 2 (2)
of Chapter III of the Regulations referred
to above, the post has to be filled up by
promotion from amongst the Class IV
employees. He submits that in case of
conflict between the Regulation and the
Government
Order,
Regulation
will
prevail and as such the post of Clerk
falling vacant on retirement of the
incumbent is to be filled up by promotion
and not by direct recruitment.

11. Having appreciated the rival
submissions, we find substance in the
submission of Mr. Asthana. Regulation 2
(2) of Chapter III of the Regulations
712 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

provides for filling up 50% of the post of
Clerk by promotion. It is not in dispute
that the Government Order provides for
reservation in promotion and in the light
thereof, the post which had fallen vacant,
is to be filled up by the member of the
Scheduled Caste category. Undisputedly,
the writ petitioner, who claims promotion
to Class III post does not belong to the
Scheduled Caste category. In view of the
aforesaid, the post of Clerk has to be
filled up by promotion from amongst the
members
of
the
Scheduled
Caste
category.

12. Regulation 2 (2) of Chapter III
of the Regulations provides for promotion
to a Class III post of such Class IV
employees,
who
are
eligible.
Undisputedly, the post of Clerk was to be
filled up by way of promotion of a
Scheduled Caste employee and the writ
petitioner being not its member, was not
eligible to be considered for such
promotion. True it is that in case of
conflict
between
the
provisions
of
Regulation and the Government Order,
the former will prevail. However, in the
present case, we do not find any conflict
between
the
Regulation
and
the
Government Order providing for filling
up the post by direct recruitment due to
non-availability of the candidate of the
reserved
category
for
promotion.
Regulation 2 (2) of Chapter III of the
Regulations does provide for promotion
of
Class
IV
employees
and
the
Government
Order
provides
for
reservation in promotion. The Regulation
is silent as to what would happen, if a
Class IV employee of the reserved
category is not available for promotion
and then how it is to be filled up. This is
supplemented by the Government Order
dated 18.2.1990, and hence it cannot be
said that the Government Order had
supplanted the Regulation, and shall not
hold the field.

13. While defending the impugned
order, Mr. Indra Raj Singh, further
submits that one post had fallen vacant in
the recruitment year and in case it is filled
up by a member of the Scheduled Caste, it
shall tantamount to 100% reservation,
which is not permissible under Article 16
of the Constitution of India. In support of
the submission, reliance has been placed
on a judgment of the Apex Court in the
case of M. Nagaraj & Ors. Vs. Union of
India & Ors., reported in AIR 2007 SC
71, and our attention has been drawn to
paragraph 67 of the judgment.

14. We do not find any substance in
the submission of Mr. Singh and the
decision relied on, instead of supporting
his contention, goes against him. Here, in
matter of promotion roster is followed and
undisputedly, two posts having been
occupied by the members of General
category, it was to be filled up by a
member of the Scheduled Caste category.
This is permissible in view of the
judgment of M. Nagaraj & Ors. (supra)
relied on by Mr. Singh itself. Paragraph
68 of the judgment, which is relevant,
reads as follows:-

"68. However, in R.K. Sabharwal
(1995 AIR SCW 1371) which was a case
of promotion and the issue in this case
was operation of roster system, the Court
stated that entire cadre strength should be
taken into account to determine whether
reservation up to the required limit has
been reached. With regard to ruling in
Indra Sawhney case that reservation in a
year should not go beyond 50% the Court
2 All] Mahendra Kumar Gond V. D.I.O.S., Azamgarh and others

713
held that it applied to initial appointments.
The operation of a roster, for filling the
cadre strength, by itself ensures that the
reservation remains within the 50% limit.
In substance the court said that presuming
that 100% of the vacancies have been
filled, each post gets marked for the
particular category of candidate to be
appointed against it and any subsequent
vacancy has to be filled by that category
candidate. The Court was concerned with
the possibility that reservation in entire
cadre may exceed 50% limit if every year
half of the seats are reserved. The
Constitution (Eighty-first Amendment)
Act, 2000 added Article 16 (4B) which in
substance gives legislative assent to the
judgement in R.K. Sabharwal."

15. Therefore, we do not find any
substance in the submission of Mr. Singh.

Mr. Singh, lastly attempted to assail
the appointment of the appellant. As the
selection of the appellant is under
consideration of the Regional Committee,
we do not want to express any opinion in
this regard. However, we hasten to add
that the writ petitioner-respondent no.5, is
not a member of the Scheduled Caste
category and, therefore, is not eligible to
be promoted to the post, which has been
reserved
for
the
Scheduled
Caste
category. This is an additional reason why
we are not inclined to entertain the said
submission.

16. In the result, the appeal is
allowed, the impugned order dated
29.6.2009 passed by the learned Single
Judge is set aside. However, there shall be
no order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.08.2009

BEFORE
THE HON'BLE C.K. PRASAD, C.J.
THE HON'BLE A.P. SAHI, J.

Special Appeal (D) No. 870 of 2009

State of U.P. and others

...Appellants/Respondents
Versus
Anand Kumar Mishra and others

...Opposite Parties

Counsel for the Appellants:
Sri M.C. Chaturvedi
C.S.S.

Counsel for the Opposite Parties:
Sri Amit Srivastava

Constitution of India-Art. 14 & 21Benefits of Vth Pay Commission-given to
all
the
employees
w.e.f.
1.1.1996petitioner/Respondent working in U.P.
Police Radio department given such
benefit
w.e.f.
30.10.2004-highly
discriminatory, arbitrary without any
basis-single
Judge
committed
no
illegality
by
placing
reliance
on
Ghanshyam
Singh
case-warrant
no
interference-appeal
misconceived-
dismissed.

Held: Para 8 & 9

It is not in dispute that other employees
of the State Government on the very
same
recommendation
of
the
Pay
Revision Committee and Equivalence
Committee, have been given the benefit
of revised pay-scale with effect from
1.1.1996. Simply because the decision in
regard to these employees was taken
later on, it will not give a right to the
State Government to give them the scale
of pay from the date the decision is
taken. We do not find any justification