# Radhey Shyam Singh (IInd) v. Director of Education, U.P. Lucknow and others

- **Citation:** (2006) 1 ILRA 313
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-07
- **Case number:** Civil Misc. Writ Petition No. 450 of 2003
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-singh-iind-v-director-of-education-u-p-lucknow-and-others-40848
- **Pages:** 3

## Headnote

Sri R.K. Tewari
S.C.
U.P.
Public
Service
Commission
(Reservation)-for
Scheduled
Castes,
Scheduled Tribes and other Backward
classes) Act 1994-Rule 3 (1)-Reservation
on
promotional
post-prior
to
enforcement of Act-its was governed by
the
G.O.
dated
11.12.93-petitioner
belongs to OBC L.T. Grade Teacherclaimed promotion under 50% quota
being senior most L.T. grade Teachermanagement passed resolution on 9.3.02
send for approval- DIOS refused on the
ground out of 6 posts of Lecturer-under
promotion Quota one post is to be filled
up by S.C./S.T. candidate-held-proper.

Held: Para 6

The reservations for SC/ST is as such
applicable in promotions and all the
Government Orders in this regard are
saved by Section 3 (7) of the Reservation
Act, 1994. The objections of the District
Inspector of Schools to the promotion of
petitioner belonging to Other Backward
Class for promotion in 50%, quota is a
such a valid objection. I do not find any
illegality or error in the order of District
Inspector of Schools, to interfere in the
matter. The writ petition is dismissed.
Case law discussed:
1993 (1) ESC-644
2001 (1) U.P.L.B.E.C.-708
1992 (1) SCC-20
1981 UPLBEC-521
2004 (1) ESC-424
2004 (2) UPLBEC-1837

## Text

1 All] Radhey Shyam Singh-II V. Director of Education U.P., Lucknow and others
313
12. I find that the pleadings and the
documentary evidence led by parties,
clearly raised the question of the status of
employment and its consequences on
termination of service. It is a substantial
question
of
law
which
was
not
appreciated by the Lower Appellate Court
and was wrongly decided against the
plaintiff, who had not quit the job and was
entitled to notice of termination. It was a
case of misconduct and called for an
enquiry before the notice of termination
could be given.

13. The plaintiff as such is entitled
to the reliefs claimed in the suit.

14. The Second Appeal is allowed.
The judgement passed by XII the
Additional District Judge, in Civil Appeal
No. 482 dated 28.1.1981 and the decree
dated 23.2.1985 is set aside. The Plaintiff
suit shall stand decreed in terms of the
directions issued by the trial court. The
plaintiff shall be entitled to the costs of
the suit throughout.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2005

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 450 of 2003

Radhey Shyam Singh (IInd) ...Petitioner
Versus
Director of Education, U.P. Lucknow and
others

 ...Respondents

Counsel for the Petitioner:
Sri K.C. Vishwakarma

Counsel for the Respondents:
Sri R.K. Tewari
S.C.
U.P.
Public
Service
Commission
(Reservation)-for
Scheduled
Castes,
Scheduled Tribes and other Backward
classes) Act 1994-Rule 3 (1)-Reservation
on
promotional
post-prior
to
enforcement of Act-its was governed by
the
G.O.
dated
11.12.93-petitioner
belongs to OBC L.T. Grade Teacherclaimed promotion under 50% quota
being senior most L.T. grade Teachermanagement passed resolution on 9.3.02
send for approval- DIOS refused on the
ground out of 6 posts of Lecturer-under
promotion Quota one post is to be filled
up by S.C./S.T. candidate-held-proper.

Held: Para 6

The reservations for SC/ST is as such
applicable in promotions and all the
Government Orders in this regard are
saved by Section 3 (7) of the Reservation
Act, 1994. The objections of the District
Inspector of Schools to the promotion of
petitioner belonging to Other Backward
Class for promotion in 50%, quota is a
such a valid objection. I do not find any
illegality or error in the order of District
Inspector of Schools, to interfere in the
matter. The writ petition is dismissed.
Case law discussed:
1993 (1) ESC-644
2001 (1) U.P.L.B.E.C.-708
1992 (1) SCC-20
1981 UPLBEC-521
2004 (1) ESC-424
2004 (2) UPLBEC-1837

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Heard Sri K.C. Vishwakarma,
learned counsel for the petitioner and
learned standing counsel.

2. Briefly stated the facts of this case
are that Chhatrapati Shivaji Inter College,
Khajuraul, District Mirzapur, is an aided
and recognised intermediate college. The
petitioner
belongs
to
the
reserved
category (Other Backward Class). He was
314 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appointed in the institution as a LT grade
teacher on 1.10.1974. A vacancy was
caused in the lecturer's grade in History
on the superannuation of Shri Samsuddin.
The petitioner being the senior most
teacher was considered for promotion in
the 50% quota reserved in the lecturer's
grade. On 9.3.2002 a resolution in this
regard was passed by the Committee of
Management and was sent for approval.
The
District
Inspector
of
Schools,
Mirzapur returned the resolution on the
ground that there are six sanctioned posts
of lecturers in the institution out of which
three posts are filled up by direct
recruitment, and that only one post in
promotion quota is vacant to be filled up
from amongst the reserved category
candidate and that according to policy of
the reservation the unfilled vacancy has to
be allotted only to the reserved category
(SC/ST) candidate.

3. Learned counsel for the petitioner
has challenged the order on the ground
that rules of reservation are not applicable
in promotion, to the post of lecturer in
intermediate colleges. He has relied upon
a judgement of this Court in Asha
Jaiswal (Smt.) vs. Joint Director of
Education, Varanasi 2004 2 UPLBEC
1837 in which it was held that the State
Government has not taken any decision to
enforce reservation in promotions in
recognised Intermediate Colleges.

4. The question with regard to
reservations in promotion for Scheduled
Caste/Scheduled Tribes candidates, on the
posts
in
lecturer's
grade
in
the
intermediate Colleges regulated by U.P.
Secondary
Education
Services
Commission Rules 1995, came up for
consideration in Sunil Kumar Misra vs.
Regional
Selection
Committee,
Gorakhpur 2004 1 ESC 424. This Court
relying upon Krishna Pal Singh vs.
Government of U.P. 1981 UPLBEC
521; Comptroller and Auditor General
of India and another vs. Mahendra Lal
and others (1992) 1 SCC 20, and Sudhir
Kumar Anand vs. U.P. State Electricity
Board and others 2001 (1) UPLBEC
708 held that the Constitution (77th
Amendment) Act 1995, inserted clause-
(4-A) in Article 16 of the Constitution of
India, enabling the State to make
provisions for reservation in matters of
promotion to any class or classes of posts
in the services under the State, in favour
of SC//ST, which in the opinion of the
State are not adequately represented in the
services under the State.

5. Section 3 (7) of the U.P. Public
Services (Reservations for Scheduled
Castes, Scheduled Tribes and Other
Backward
Classes)
Act
1994
(the
Reservation Act 1994, for short), provides
that if on the date of commencement of
the Act, reservation was in force under
any Government Order for appointment to
the posts to be filled up by promotion,
such Government Orders shall continue to
be applicable till they are modified or
revoked. Prior to the enforcement of the
Act i.e. 11.12.1993, the State Government
had
issued
orders
providing
for
reservation for 21% for Scheduled Caste,
2% for Scheduled Tribe, in respect of
posts to be filled up by way of promotion.
The
Government
Orders
issued
on
12.7.1998, was thus saved by the
Reservation Act 1994. In Sudhir Kumar
Anand (supra) this Court upheld these
orders and in V.K. Banerjee vs. State of
U.P. 1993 (1) ESC 644 this Court upheld
the validity of the Government order
dated 10.10.1994 increasing reservation
quota
for
promotion
in
favour
of
1 All] Rama Kant Misra V. C/M, Badri Nath Intermediate College and others
315
Scheduled Castes candidates from 18% to
21%.

6. The reservations for SC/ST is as
such applicable in promotions and all the
Government Orders in this regard are
saved by Section 3 (7) of the Reservation
Act, 1994. The objections of the District
Inspector of Schools to the promotion of
petitioner belonging to Other Backward
Class for promotion in 50%, quota is a
such a valid objection. I do not find any
illegality or error in the order of District
Inspector of Schools, to interfere in the
matter. The writ petition is dismissed.
Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.08.2005

BEFORE
THE HON'BLE V.K. SHUKLA, J.

Civil Misc. Writ Petition No. 8540 of 1996

Rama Kant Misra

...Petitioner
Versus
Committee of Management, Badri Nath
Intermediate
College,
Meja
Road,
Allahabad and others ...Respondents

Counsel for the Petitioner:
Sri Raj Kumar Jain
Sri Hari Shanker Misra
Sri R.K. Singh
Sri Anil Bhushan

Counsel for the Respondents:
Sri Sudhir Agarwal, Addl. A.G.
Sri Radhey Shyam Dwivedi
Sri S.S. Sharma
Sri Rajesh Dwivedi
S.C.

U.P. Act No. 4 of 1994-Section 2 (c), 3
(7)-readwith Constitution of India Art.
14, 16-Reservation in Promotional PostGovernment order providing reservation
to S.C./S.T.-continue to be applicable till
revocation,
or
modification-Post
of
lecturer-if
the
vacancy
fall
under
reserved Quota-suitable candidates for
promotion not available-it shall carry
forward to next year-but can not be
filled up by general category.

Held: Para 20 & 22

The logical conclusion on the basis of
reference made above is that though in
the matter of promotion under U.P. Act
No. 5 of 1982 and the Rules framed
thereunder there is no mention for
providing
any
reservation,
but
as
promotion is to be made in "public
service and post" as defined under
Section 2(c) and 2(c) (iv) of U.P. Act No.
4 of 1994 then in terms of Section 3(7)
of
U.P.
Act
No.
4
of
1994,
the
Government Orders which covered the
field of promotion qua SC/ST category
candidates, continue to be applicable till
they are modified or revoked. As till date
said Government Orders have not been
revoked or modified, net effect of the
same would be that 21% of vacancies is
to be filled by way of promotion from
amongst
SC
category
and
2%
of
vacancies from amongst ST category
candidates.

Thus, this much is clear that when the
point is fixed for reserved category
candidates by way of roster then same
has to be filled from amongst the
members of reserve category and the
candidates
belonging
to
General
category
are
not
entitled
to
be
considered on the reserved post and the
Sate Government has discretion to carry
forward the point in just and fair
manner. Thus, reserved post cannot be
offered to other category candidate and
State Government is empowered to carry
forward the said point in just and fair
manner.
Case law discussed:
1981 UPLBEC 521,
1992 Supp. (3) SCC-217
2001 (1) UPLBEC 708