# Rajesh Kumar Dwivedi v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 572
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-31
- **Case number:** Writ-A No. 4952 of 2007
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-dwivedi-v-state-of-u-p-ors-49974
- **Pages:** 6

## Headnote

A. Service Law - Promotion/Reservation -
Salary - Reservation quota of Scheduled
Castes is not applicable against three
vacancies available in the institution and
in case it is permitted, it will exceed 21%
quota of reservation. (Para 14)

In the present case, the committee of
management passed a resolution on 19.12.2006
for grant of promotion to the petitioner on the
post of Lecturer in Hindi. The papers were duly
submitted before the DIOS for its transmission
to the Regional Selection Committee constituted
u/s 12 of the Relevant Rules. The Regional Level
Committee took decision in the matter, which
was communicated by the Regional Joint
Director
of
Education
vide
order
dated
25.06.2007, whereby it has been held that the
post against which the petitioner has been
granted promotion, comes under reserved
category of Scheduled caste, as per roster.
(Para 4)

The
DIOS
vide
letter
dated
05.07.2007
communicated the decision of the Regional
Level Committee /Regional Joint Director of
Education dated 25.06.2007 and returned the
papers of the petitioner for grant of promotion.
(Para 5)

The present situation has been dealt with in
detail in the Full Bench decision of Heera Lal Vs
4 All. Rajesh Kumar Dwivedi Vs. State of U.P. & Ors.
573
St. of U.P. & ors. - 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 where 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 available
only to scheduled castes in the St. 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 has to be a minimum of five posts for
applying the 21% 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.
(Para 13)

In the present case, there are six posts, three
posts comes under direct recruitment quota and
three posts comes under promotional quota.
The quota of reservation shall apply separately
to direct re

## Text

572 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Neither the Committee of
Management nor the District Inspector of
Schools took any decision on the claim of
the petitioner. Once the post under 50%
promotion quota was vacant, it should have
been filled up by promotion. The impugned
order passed without considering the claim
for promotion under 50% promotion quota
is bad in law.

21. The appointment by way of direct
recruitment is devoid of merits in view of
the fact that the post of Lecturer in Civics
was to be filled up by way of grant of 50 %
promotion quota to the petitioner. The
promotion is made under the statutory
provisions of law under Rule 14 of the
1998
Rules.
Therefore,
the
direct
recruitment to the post in question cannot
be made till a candidate for the grant of
promotion is available in the institution.

22. In view of the above, the writ
petition is allowed. Order dated 22.4.2006
passed by the Selection Board, letter of the
District
Inspector
of
Schools
dated
11.5.2006 and resolution of the Managing
Committee dated 14.5.2006 are hereby
quashed.

23. However, the Regional Level
Selection Committee is directed to consider
the claim of the promotion of the petitioner
under 50% promotion quota within a period
of six weeks from the date of production of
a certified copy of this order.

24. It is further clarified that the
promotion of the petitioner shall be
considered from the first day of the year of
recruitment and consequential benefits
shall also be provided to him.
----------
(2023) 4 ILRA 572
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 31.03.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 4952 of 2007

Rajesh Kumar Dwivedi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
G.C. Verma

Counsel for the Respondents:
C.S.C., Ashish Mishra, P.K. Khare, R.C. Singh,
Raj Deepak Chaudhary

A. Service Law - Promotion/Reservation -
Salary - Reservation quota of Scheduled
Castes is not applicable against three
vacancies available in the institution and
in case it is permitted, it will exceed 21%
quota of reservation. (Para 14)

In the present case, the committee of
management passed a resolution on 19.12.2006
for grant of promotion to the petitioner on the
post of Lecturer in Hindi. The papers were duly
submitted before the DIOS for its transmission
to the Regional Selection Committee constituted
u/s 12 of the Relevant Rules. The Regional Level
Committee took decision in the matter, which
was communicated by the Regional Joint
Director
of
Education
vide
order
dated
25.06.2007, whereby it has been held that the
post against which the petitioner has been
granted promotion, comes under reserved
category of Scheduled caste, as per roster.
(Para 4)

The
DIOS
vide
letter
dated
05.07.2007
communicated the decision of the Regional
Level Committee /Regional Joint Director of
Education dated 25.06.2007 and returned the
papers of the petitioner for grant of promotion.
(Para 5)

The present situation has been dealt with in
detail in the Full Bench decision of Heera Lal Vs
4 All. Rajesh Kumar Dwivedi Vs. State of U.P. & Ors.
573
St. of U.P. & ors. - 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 where 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 available
only to scheduled castes in the St. 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 has to be a minimum of five posts for
applying the 21% 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.
(Para 13)

In the present case, there are six posts, three
posts comes under direct recruitment quota and
three posts comes under promotional quota.
The quota of reservation shall apply separately
to direct recruitment as well as to promotional
quota. There is promotional quota against
three posts only, therefore, roster for
reservation of Scheduled Castes will not
be made applicable. (Para 7, 16)

Writ petition allowed. The impugned orders
dated 25.06.2007 and 05.07.2007 are hereby
set aside. The respondents are directed to pay
salary to the petitioner w.e.f. 19.12.2006 till
date within a period of one month from the date
of production of a certified copy of this order.
Consequential benefits shall also be provided to
the petitioner. (Para 17 to 19) (E-4)

Precedent followed:

Heera Lal Vs St. of U.P. & ors.; (2010) 3
UPLBEC 1761 (Para 7)

Present petition challenge the orders
dated 25.06.2007 and 05.07.2007 passed
by respondent No.2 & 3 respectively as
well as decision dated 23.06.2007 as
mentioned
in
impugned
order
dated
25.06.2007 with a further prayer to issue
a writ, order or direction in the nature of
mandamus commanding the respondents
to grant approval for promotion of the
petitioner w.e.f. 19.12.2006 and to pay
salary for the post of Lecturer regularly
along with arrears w.e.f. 19.12.2006.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri G.C. Verma, learned
counsel for the petitioner, learned Standing
Counsel for respondent - State and Sri Raj
Deepak Chaudhary, learned counsel for
respondent No.5.
574 INDIAN LAW REPORTS ALLAHABAD SERIES

2. By means of present writ petition,
the petitioner is challenging the orders
dated 25.06.2007 and 05.07.2007 passed by
respondent No.2 & 3 contained as annexure
Nos.1&2 respectively as well as decision
dated
23.06.2007
as
mentioned
in
impugned order dated 25.06.2007 with a
further prayer to issue a writ, order or
direction in the nature of mandamus
commanding the respondents to grant
approval for promotion of the petitioner
w.e.f. 19.12.2006 and to pay salary for the
post of Lecturer regularly along with
arrears w.e.f. 19.12.2006.

3. Factual matrix of the case is that
a post of Hindi Lecturer fallen vacant
due to retirement of one Mr. K.K. Misra
under under 50% promotion quota. In
the institution, there are six sanctioned
posts of Lecturers out of which, three
posts of Lecturers are to be filled up by
way of direct recruitment and three
posts are to be filled up by way of
promotion. Out of six posts, one post of
Lecturer was already filled up from
Scheduled Caste Category and one Mr.
Parmeshwar
Deen
Chaudhary
was
working on the said post.

4. The committee of management
passed a resolution on 19.12.2006 for
grant of promotion to the petitioner on
the post of Lecturer in Hindi. The
papers were duly submitted before the
District Inspector of Schools (DIOS) for
its
transmission
to
the
Regional
Selection Committee constituted under
Section 12 of the Relevant Rules. The
Regional
Level
Committee
took
decision in the matter, which was
communicated by the Regional Joint
Director of Education vide order dated
25.06.2007, whereby it has been held
that
the
post
against
which
the
petitioner has been granted promotion,
comes under reserved category of
Scheduled caste, as per roster.

5. The DIOS vide letter dated
05.07.2007 communicated the decision
of the Regional Level Committee /
Regional Joint Director of Education
dated 25.06.2007 and returned the
papers of the petitioner for grant of
promotion.
The
petitioner,
feeling
aggrieved, filed the present writ petition
before this Court, wherein following
interim
order
was
passed
on
20.08.2007:

"Notice on behalf of opposite parties
no.1 to 3 has been accepted by the learned
Standing Counsel, who prays for and is
granted four weeks time to file counter
affidavit. Two weeks thereafter is allowed
to the counsel for the petitioner to file
rejoinder affidavit. List thereafter.

In the meantime, operation of the
impugned orders dated 25.6.2007 and
5.7.2007, contained in Annexure nos. 1 and
2 to the writ petition, shall remain stayed
so far as it related to the petitioner and
with respect to the post of Lecturer in Hindi
in R.B.S.B., Singh Inter College Kamlapur,
Sitapur."

6. In pursuance to the order passed by
this Court, the petitioner was permitted to
continue on the post of Lecturer in Hindi
and operation of the impugned orders dated
25.06.2007 & 05.07.2007 was stayed.

7. Submission of learned counsel for
the petitioner is that there are six posts of
Lecturers duly sanctioned in the institution
and under 50% promotion quota, there are
only three posts, which is less than 5,
therefore, in view of decision of the Full
Bench in the case of Heera Lal Vs. State
4 All. Rajesh Kumar Dwivedi Vs. State of U.P. & Ors.
575
of U.P. and others;(2010) 3 UPLBEC
1761, there shall be no reservation against
three vacancies in existence. His next
submission is that in case reservation to the
scheduled castes is permitted, which is
21%, it will exceed 25%. In support of his
submissions, he placed reliance upon
paragraph 32 of the judgment in the case of
Heera Lal (Supra).

9. On the other hand, learned counsel
for the respondents submitted that there are
six posts and roster will apply against them.
In view of above, one post shall be reserved
for Scheduled Castes Category. Their next
submission is that the impugned orders
passed by Regional Level Committee as
well as by the DIOS do not suffer from any
infirmity or illegality and are just and valid.

10. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record.

11. To resolve the controversy
involved in regard to applicability of roster
of reservation against three vacancies
available
in
the
institution,
relevant
paragraph of the judgment in the case of
Heera Lal (Supra) is being quoted below:

"12. The main plank of the argument
on
behalf
of
those
opposing
the
application of the roster, rests on the ratio
of the Division Bench decision in the case
of
Dr.
Vishwajeet
Singh
(supra),
contending that there is no occasion for
the applicability of the rule of reservation
with the help of any roster for scheduled
caste candidates, as the percentage of
reservation for scheduled castes which is
21%,
envisages the existence of a
minimum of total number of five posts in
the cadre strength for calculating and
applying the said percentage. It is urged
by them that 21% can be calculated only if
there are a minimum number of five posts
for offering 21% reservation as it is only
then that one post can be reserved for
scheduled castes. It is submitted that if the
posts are less than five, as in the present
case which is three, the mathematical
percentage as prescribed i.e. 21% is
beyond calculation and there cannot be a
fraction available amongst three posts for
applying the said percentage."

12. The question referred to the
larger Bench in the case of Heera Lal
(Supra) is also being quoted below:

"9......A perusal of the said two
Division Bench judgements in the case of
Vishwajeet
Singh
(Supra)
and
Smt
Pholpati
(Supra)
indicate
that
the
applicability
of
the
roster
can
be
implemented wherever there are five or
more than five posts to be filled up where
reservation is being claimed under the
Uttar
Pradesh
Public
Services
(
Reservation
for
Scheduled
Castes,
Scheduled Tribes and Other Backward
Classes) Act, 1994.

The said decision clearly lays down :
that there has to be existence of more than
five posts for the purpose of applying
roster otherwise it would violate the law in
Indira Sahani's Case as reservation will
then be in excess of 50%. Having perused
the ratio of the two division Bench
judgements it appears that the same has
not been noticed in the decision in
Mahendra Kumar Gond's case. The
decision in the case of Dr. Vishwajeet was
rendered on 20th April 09 whereas
decision in the case of Pholpati Devi was
rendered prior to that.

10. Both these decisions appear to
have escaped the notice of the court and
576 INDIAN LAW REPORTS ALLAHABAD SERIES
the applicability of the roster in the
situation where there are only three posts
available.

11. In this view of the ratio laid down
in the two judgements of Dr Vishwajeet
Singh and Smt. Pholpati Devi(Supra) there
appears to be a contradictory position
indicated in Mahendra Kumar Gond's case
and as such the same deserves to be
resolved by reference to a larger Bench.

12. Accordingly, in exercise of the
powers conferred under Chapter 5 Rule 6
of the Allahabad High Court Rules, the
following questions deserve to be referred
to a larger Bench, in view of the position
indicated above.

1. Whether the roster in respect of
reservation can be applied with regard to
the promotion in respect of class class III
posts in Intermediate College, where the
number of posts is less than five?

2. Whether there is a conflict between
the ratio of the two Division Bench
judgements of Mahendra Kumar Gond (
Supra) and Dr.Vishwajeet Singh (Supra) as
referred to herein above, and if so, then
which of the decisions lay down the law
correctly ?"

13. The
question, which
was
considered by the Full Bench in the case of
Heera Lal (Supra) is also being quoted
below:

"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%
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
4 All. Smt. Pinki Devi Vs. State of U.P. & Ors.
577
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."

14. On perusal of the Full Bench
judgment, it is evidently clear that
reservation quota of Scheduled Castes is
not applicable against three vacancies
available in the institution and in case it is
permitted, it will exceed 21% quota of
reservation.

15. The argument advanced by
learned counsel for the petitioner has merit
and the writ petition deserves to be
allowed, however, the arguments advanced
by learned counsel for the respondents that
the quota of reservation will apply against
six available vacancies is erroneous in
nature under Rule 10 of Rules of 1998. In
the case in hand, 50% posts are to be filled
up by way of direct recruitment and 50%
posts shall be filled up by grant of
promotion.

16. In view of the fact that there are
six posts, three posts comes under direct
recruitment quota and three posts comes
under promotional quota. The quota of
reservation shall apply separately to direct
recruitment as well as to promotional
quota. There is promotional quota against
three posts only, therefore, roster for
reservation of Scheduled Castes will not be
made applicable.

17. In view of the reasons recorded
above, the writ petition succeeds and is
allowed.

18. The impugned orders dated
25.06.2007 and 05.07.2007 are hereby set
aside.

19. The respondents are directed to
pay
salary
to
the
petitioner
w.e.f.
19.12.2006 till date within a period of one
month from the date of production of a
certified copy of this order. Consequential
benefits shall also be provided to the
petitioner.

20. Parties shall bear their own costs.
----------
(2023) 4 ILRA 577
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 5335 of 2023

Smt. Pinki Devi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sheikh Mozzam Inam, Sri S.C. Dwivedi

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Inquiry
-
Loss,
misappropriation and misuse of funds -
Uttar Pradesh Panchayati Raj Act, 1947:
Section 27(2); Panchayat Raj Rules, 1947:
Rules 256 and 257.

Jurisdiction - A perusal of Section 27 of
the Act of 1947 r/w Rule 256 of the Rules
of 1947 clearly shows that surcharge was
leviable
on
an
enquiry
which
was
conducted by the Chief Audit Officer and
which had to be forwarded to the District
Magistrate in the case of Pradhan, UpPradhan and Members of Gram Panchayat
and to the District Panchayat Raj Officer
in the cases of officers and servants of the
Gaon Sabha. (Para 9)

Therefore, it was the Chief Audit Officer of the
Cooperative Societies and Panchayat who was