# No. 46342 of 2007, Baldeo Raj Arora v. Shree

- **Citation:** (2012) 3 ILRA 1223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-09-27
- **Bench:** Devendra Pratap Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/no-46342-of-2007-baldeo-raj-arora-v-shree-42377
- **Pages:** 4

## Headnote

Constitution
of
India-Article
226Promotion-petitioner
a
class
4th
employee-claimed promotion of class 3
1224 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
post under 20 % quota-rejected on
ground the remaining two vacancy fall
under reserved quota-held illegal-inpromotion reservation not available in
view of law laid down by Apex Court in
case of U.P. Power Corporation case.

Held: Para-6

This stand of the respondents in the
counter affidavit does not appear to be
correct. Once the computation of the
percentage is on the basis of sanctioned
post of Junior Clerks, promotion to the
post of Senior Clerk has to be taken into
consideration as that is the entry point of
the group 'D' employees. Otherwise, the
percentage has to be calculated taking
into account all the sanctioned group 'C'
post,
including
Senior
Clerks,
Head
Clerks etc. The department cannot blow
hot and cold in the same breath and the
stand taken would be arbitrary as it does
not satisfy the criteria of rationality. The
entry point for group 'D' employees is
the post of Junior Clerk and therefore, if
any promotee from group 'D' is further
promoted, he would leave a vacancy for
the group 'D' promotion. Thus the first
argument of the petitioner is bound to be
accepted.
Case Law discussed:
2012 (2) UPLBEC 1222; AIR 2007 SC 71

## Text

3 All] Uma Pati Tripathi V. State of U.P. & others
1223
management of the Trust and its
property ws handed over to the
plaintiff,
however,
the
ownership
continued to be of that person who
created the trust i.e. Nand Kishore. I
do not accept this argument. First of
all,
after
creation
of
trust
owners/executors of the trust deed are
divested
of
their
ownership
and
secondly in the Trust deed (at page 17
of the paper book) it is specifically
mentioned........."

19. in view of the aforesaid, the
answer of the questions ABC is as
follows:

A. The trust deed dated 13.12.1954
registered on 20.12.1954 executed by
Shri Nand Kishore for himself and as
Manager and Karta of the Joint Hindu
family including his brothers and Jagan
Prasad and Madan Lal, sons and heirs
of Gursaran Das @ Baijnath, chela of
Baba Garib Das, resident of Mathura
proves the nature and origin of
endowment and shows that the control
and management of the dharmshala is
not retained with the founder or his
descendants and that the property was
dedicated for the public charitable
purpose
to
a
public
charitable
institution to which trust right, title and
ownership was transferred. The trust
deed dated 13.12.1954 cannot be read
as creating any private endowment.

B. After vesting the management in
the Gaudia Vedanta Society' and its
member the founders did not retain any
control over the management.

C. The judgements in writ petition
No. 54930 of 2003, Ram Ratan Sharma
son of Tulsi Das Vs. District Judge,
Mathura dated 17.2.2004; writ petition
No. 46342 of 2007, Baldeo Raj Arora Vs.
Shree
Keshav
Ji
Gauriya
Math
Dharmshala dated 24.9.2007 and writ
petition No. 45694 of 2007, Ashok Kumar
& Ors. Vs. Sri Keshavji Gauriya Math
Dharmshala
Trust
&
Ors.
Dated
3.10.2007 holding that the building was a
public charitable trust exempt under
section 2 (1)(bb) of the Act lays down
correct law.

20. In view of the above discussions
and our answers, we find that there is no
merits in any of the submissions of
learned Counsel for the petitioner and the
judgement of Judge Small Cause Courts
does not suffer from any error which may
warrant any interference by this Court in
exercise of writ jurisdiction. The writ
petition is dismissed.The interim order
stands discharged.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.09.2012

BEFORE
THE HON'BLE DEVENDRA PRATAP SINGH, J.

Civil Misc. Writ Petition No. 60917 of
2008.

Uma Pati Tripathi

 ...Applicant
Versus
State of U.P. & others
 ...Respondents

Counsel for the Petitioner:
Sri Ashish Chitranshi
Sri Ashok Khare

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Promotion-petitioner
a
class
4th
employee-claimed promotion of class 3
1224 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
post under 20 % quota-rejected on
ground the remaining two vacancy fall
under reserved quota-held illegal-inpromotion reservation not available in
view of law laid down by Apex Court in
case of U.P. Power Corporation case.

Held: Para-6

This stand of the respondents in the
counter affidavit does not appear to be
correct. Once the computation of the
percentage is on the basis of sanctioned
post of Junior Clerks, promotion to the
post of Senior Clerk has to be taken into
consideration as that is the entry point of
the group 'D' employees. Otherwise, the
percentage has to be calculated taking
into account all the sanctioned group 'C'
post,
including
Senior
Clerks,
Head
Clerks etc. The department cannot blow
hot and cold in the same breath and the
stand taken would be arbitrary as it does
not satisfy the criteria of rationality. The
entry point for group 'D' employees is
the post of Junior Clerk and therefore, if
any promotee from group 'D' is further
promoted, he would leave a vacancy for
the group 'D' promotion. Thus the first
argument of the petitioner is bound to be
accepted.
Case Law discussed:
2012 (2) UPLBEC 1222; AIR 2007 SC 71

(Delivered by Hon'ble Devendra Pratap
Singh, J.)

1. Heard learned counsel for the
petitioner, learned Standing counsel and
perused the record.

2. This petition is directed against an
order dated 24.10.2008 by which the
claim of the petitioner for promotion to
class 'C' post has been rejected.

3. Brief facts are that the petitioner
was appointed as a class IV employee in
the office of Block Development Officer,
Saidpur district Ghazipur in April 1991
and his services were regularized on
11.10.1996. In pursuance of Government
orders dated 31.8.1982 and 8.9.1995, a
total of 20% class 'C' post are reserved for
promotion of class 'D' employees. In
pursuance of an order dated 26.6.2004
issued by the Block Development Officer,
Ghazipur
inviting
applications
from
Group 'D' employees for being promoted
in the 20% quota to the Group 'C' post the
petitioner, being duly qualified, along
with others had applied. However, no
action was taken though others were
promoted to the post of junior clerk. Thus,
the petitioner preferred Writ Petition No.
43289 of 2008 and a learned Single Judge
of this Court disposed it off with a
direction to the respondents to consider
his claim, vide order dated 22.8.2008.

4. In pursuance thereof, the present
impugned order has been passed. It has
been held therein that in the 20% quota
for promotion from class 'D' post only
four posts were available in the class 'C'
category wherein two persons Nazir
Ahmad and Sirajul Islam belonging to the
general category had been promoted and
the remaining two posts fell in the
reserved quota and since the petitioner
belongs to general category, he is not
entitled to be promoted.

5. It is urged that Shri Nazir Ahmad
and Shri Sirajul Islam, both have been
promoted to the post of senior clerks and
therefore four vacancies, including in the
reserved category, are still vacant for the
purposes of promotion on the post of
junior clerk. It is further urged that the
Apex Court in the case of U.P. Power
Corporation Ltd. Vs. Rajesh Kumar
and others [2012 (2) UPLBEC 1222],
decided along with a large bunch, has
held, that Section 3(7) of the U.P. Public
3 All] Uma Pati Tripathi V. State of U.P. & others
1225
Servants (Reservation for Scheduled
Castes, Scheduled Tribes and other
Backward Classes) Act, 1994 (hereinafter
referred to as the '1994 Act') and Rule 8A of U.P. Government Servants Seniority
Rules, 1991, to be ultra vires and
therefore, there can be no reservation and
promotion and thus even assuming the
factual statement in the impugned order,
the two posts have to be filled up on
merits.

6. A perusal of impugned order
shows that the 20% of the 22 sanctioned
post of Junior Clerks has been taken into
consideration for identifying 4 posts for
promotion from group 'D'. It is further
evident therefrom that Sirajul Islam and
Nazir Ahmad were promoted to the post
of Junior Clerk from group 'D'. But the
petitioner has annexed a seniority list to
show that both the persons have already
been promoted to the post of senior clerk
several years ago and in para 15 of the
writ petition it is stated that the said two
posts are still available in the cadre of
Junior Clerks. However, in the counter
affidavit a stand has been taken that once
they were appointed as Junior Clerks after
promotion
from
group
'D'
their
subsequent promotion to the post of
Senior Clerk would make no difference
and the two posts would be deemed to be
filled. This stand of the respondents in the
counter affidavit does not appear to be
correct. Once the computation of the
percentage is on the basis of sanctioned
post of Junior Clerks, promotion to the
post of Senior Clerk has to be taken into
consideration as that is the entry point of
the group 'D' employees. Otherwise, the
percentage has to be calculated taking into
account all the sanctioned group 'C' post,
including Senior Clerks, Head Clerks etc.
The department cannot blow hot and cold
in the same breath and the stand taken
would be arbitrary as it does not satisfy
the criteria of rationality. The entry point
for group 'D' employees is the post of
Junior Clerk and therefore, if any
promotee from group 'D' is further
promoted, he would leave a vacancy for
the group 'D' promotion. Thus the first
argument of the petitioner is bound to be
accepted.

7. So far as the second argument of
learned counsel for the petitioner is
concerned, it also has substance. A
perusal of the impugned order shows that
reservation in favour of scheduled castes
and scheduled tribes has been given in
pursuance of the 1994 Act and the only
section relevant for promotion is Section
3(7). The validity of Section 3(7) of the
1994 Act and Rule 8-A of U.P.
Government Servants Seniority Rules,
1991 were called in question before a
Division Bench of our High Court which
held that the same was ultra vires as they
run counter to the ratio laid down in M.
Nagraj & others Vs. Union of India &
others [AIR 2007 SC 71]. The judgment
of this Court has been upheld by the Apex
Court in the case of Rajesh Kumar and
others (supra). Therefore, even assuming
that
the
two
remaining
posts
for
promotion from group 'D' employees are
available, in view of the aforesaid
judgment of the Apex Court they would
have to be filled up in accordance to the
promotion rules and would not be
reserved for any category.

8. For the reasons above, this
petition succeeds and is allowed and the
impugned order dated 24.10.2008 is
hereby quashed. The respondents shall
reconsider the claim of the petitioner and
other eligible candidates in accordance
1226 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
with the observations made hereinabove.
The exercise may be completed within a
period of six weeks from the date of
submission of a certified copy of this
order.
---------