# Shikha Abrol v. State of U.P. & Anr. 1152 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 4 ILRA 1151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-23
- **Case number:** Writ-A No. 3372 of 2002
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shikha-abrol-v-state-of-u-p-anr-1152-indian-law-reports-allahabad-series-49816
- **Pages:** 13

## Headnote

Civil Law - Service Law - Probation -
Petitioner was appointed to the post of
Stenographer and placed on probation.
She successfully completed her probation
period, which was never extended. After
more
than
5
years
of
service,
a
termination order was passed. Held: If,
under the statute, the probation period
cannot be extended, the appointment is
deemed confirmed upon the expiration of
the
probation
period.
Since
the
petitioner's probation period was not
extended, she is considered to have
successfully completed it. As per service
rules, when an employee continues in the
post beyond the maximum probation
period without an explicit confirmation
order, they cannot be deemed to remain
on probation by implication. This is
because service rules prohibit extending
the probation period beyond the fixed
limit. In such cases, it can be inferred that
the employee has been confirmed in their
post by implication. Executive instructions
cannot override statutory rules. (Paras
20, 21)

Writ Petition allowed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,873 of 42,245. This is a partial read: ask again with offset=39873 for what follows._

4 All. Shikha Abrol Vs. State of U.P. & Anr.
1151
judgement of the Single Judge can be set
aside only by a Division Bench in special
appeal or by the Supreme Court in appeal
against the said order and accordingly the
arguments of the petitioner in this regard
are rejected.

28. This Court is also of the
considered view that the petitioner has
never assailed the order of the Hon'ble
Visitor or the judgement of this Court dated
19/05/2019 and, therefore, in absence of
the challenge to the same, relief as prayed
cannot be granted to the petitioner. In any
view of the matter when the order of the
Hon'ble Visitor is still holding field and has
not even been subjected to any challenge
before any forum, there is no reason to
deny respondent No.6 the benefit of the
said order. It is for the same reason that this
Court is not going into the detailed
submissions made by counsel for the
petitioner with regard to the applicability of
U.P. Public Servants (Reservation for
Scheduled Castes, Scheduled Tribes and
Other Backwards Classes) Act, 1994 while
assailing the appointment of respondent
No. 6, apart from the fact that a Special
Appeal assailing the order of Hon'ble
Single Judge is pending consideration,
where
all
these
arguments
may
be
considered.

29. Another reason for not interfering
with the decision of the SGPGIMS in
appointing respondent No. 6 as Head of
Department (Microbiology) is that the dispute
regarding his appointment and selection was
under consideration at various levels for the
last 19 years, and such dispute cannot be
allowed to continue endlessly, and a quietus
has to be given to the dispute at some stage.
Permitting the petitioner to continue to agitate
the dispute is neither in public interest nor in
the interest of SGPGIMS nor the teaching
faculty. The petitioner was aware of this
situation since the date he joined the
Department of Microbiology but chose to
remain silent and only when the issue
pertaining to appointment on the post of Head
of Department (Microbiology) has gain
momentum, he has chosen to stake his claim.
Had he been serious with regard to the
challenge of appointment of respondent no. 6
as an Assistant Professor, he could have done
so within a reasonable period of time after his
appointment in 2013. He having remained a
silent spectator, will be deemed to have
acquiesced to the order of Hon'ble Visitor as
well as Judgment of this Court dated
09/05/2019 and, hence, cannot be permitted
to agitate this dispute at his convenience
when the post of Head of Department is
about to fall vacant.

30. This Court has also been informed
that respondent no. 6 has already taken over
as Head of Department of Microbiology.

31. For the aforesaid reasons, this Court
is not inclined to exercise its extraordinary
jurisdiction under Article 226 of the
Constitution of India in favour of the
petitioner, and subject to the decision of the
Division Bench in Special Appeal No. 254 of
2019, the writ petition is dismissed.
----------

(2023) 4 ILRA 1151
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.02.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 3372 of 2002

Shikha Abrol ...Petitioner
Versus
State of U.P. & Anr. ...Respondents
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Dr. L.P. Mishra

Counsel for the Respondents:
C.S.C., Pradeep Tiwari

Civil Law - Service Law - Probation -
Petitioner was appointed to the post of
Stenographer and placed on probation.
She successfully completed her probation
period, which was never extended. After
more
than
5
years
of
service,
a
termination order was passed. Held: If,
under the statute, the probation period
cannot be extended, the appointment is
deemed confirmed upon the expiration of
the
probation
period.
Since
the
petitioner's probation period was not
extended, she is considered to have
successfully completed it. As per service
rules, when an employee continues in the
post beyond the maximum probation
period without an explicit confirmation
order, they cannot be deemed to remain
on probation by implication. This is
because service rules prohibit extending
the probation period beyond the fixed
limit. In such cases, it can be inferred that
the employee has been confirmed in their
post by implication. Executive instructions
cannot override statutory rules. (Paras
20, 21)

Writ Petition allowed. (E-5)

List of Cases cited:

1. Jaswant Singh Pratap Singh Jadeja Vs
Rajkot Municipal Corporation & ors.; (2007)
10 SCC.

2. Rajinder Singh Chauhan & ors. VS St. of Har.
& ors.; (2005) 13 SCC 179.

3. Heera Lal Vs St. of U.P. & ors., (2011) 29 LCD
1.

4. Netrapal Singh Vs Chandra Pal Singh & ors.,
(2013) 2 ESC 535.

5. Vinod Kumar Vs St. of U.P. & ors.; (2011) 29
LCD 103.
6. Smt. Vandana Gangwar Vs St. of U.P. & ors.;
(2011) 2 UPLBEC 1299.

7. Dr. Vishwajeet Singh & ors. Vs St. of U.P. &
ors.; 2009 (2) ESC 1387 (All) (DB).

8. National Fertilizers Ltd. & ors. Vs Somvir
Singh; (2006) 5 SCC 493.

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

1. Heard Dr. L.P. Mishra, learned
Senior Counsel assisted by Sri Naveen
Shukla, learned counsel for the petitioner,
learned ACSC for respondent No.1 and Sri
Pradeep
Tiwari,
learned
counsel
for
respondent No.2.

2. The present writ petition has been
filed
challenging
the
order
dated
22.06.2002 passed by respondent No.2
contained as Annexure-1 to the writ
petition with further prayer to issue a writ,
order or direction in the nature of
mandamus commanding the respondents to
allow the petitioner to continue in service
in the establishment of respondents as
Stenographer with all service benefits
notwithdstanding the impugned order dated
22.06.2002.

3. Factual matrix of the case is that a
communication was made to the District
Employment
Exchange,
Lucknow
for
making the names of eligible candidates on
the
post
of
Stenographer
in
the
establishment of Directorate of Sainik
Kalyan Evam Punerwas, U.P., Lucknow
and the candidature was sought from
district level offices i.e. Zila Sainik Kalyan
Evam Punerwas Offices.

4. The selection was held and 12
candidates
including
the
petitioner
appeared and on the basis of written
examination, short-hand, typing test and
4 All. Shikha Abrol Vs. State of U.P. & Anr.
1153
interview, the petitioner was recommended
for
appointment
on
the
post
of
Stenographer by the selection committee on
23.12.1996. On the recommendation made
by the selection committee, the Deputy
Director submitted a note on 27.12.1996
before respondent No.2 clearly stating that
the post was to be filled up through a
candidate belonging to General Category.

5. An appointment letter was issued to
the petitioner and in pursuance thereof, she
joined as Stenographer on 01.01.1997 and
was
placed
under
probation.
She
successfully
completed
the
probation
period, which was never extended. After a
period of more than 5 years of working, a
notice was issued to her on three grounds:

a) the vacancy was determined
and requisition was sent to District
Employment Exchange and notice of the
vacancy was also pasted on the notice
board of the Directorate.

b) As per rules of reservation,
this vacancy was to be filled up through
scheduled caste reserved category and
rules of reservation was not followed.

c) the prescribed eligibility for
appointment to a clerical post i.e.
experience of 5 years working in army
service
was
not
possessed
by
the
petitioner.

6. The said show cause notice
dated 18.05.2002 was replied by the
petitioner on 17.06.2002 stating that it
was to be ascertained at the official
level
before
making
petitioner's
appointment.
However,
without
considering the petitioner's reply, order
of
termination
was
passed
on
22.06.2002.

7. Submission of learned Senior
Counsel for the petitioner is that the order
of termination vitiates on 3 grounds:

a) under the rules, there is no
provision to issue advertisement inviting
application
from
open
market.
For
reference, Rule 5 of the applicable rules is
being quoted below:
पररभशस्ट "ख"

[ननयि ५ (घ) (२) देर्खए।

नैत्यक श्रेणी के भलवपकों के पदों पर
ननयुजक्त के ननभिि चयन के भलए छटनी ककए
गए कितचाररयों और िूतपूित सैननक कितचाररयों
के श्रेर्णयां:

१) सेिायोजक वििाग के िूतपूित
कितचारी,

२) प्राक्षक्षक (ररजवितस्ट्स) तथा सेना
ननिृि िैतननक

३) खाद्य तथा रसद वििाग के
िूतपूित कितचारी,

४) सहायता तथा पुनिातसन वििाग
के िूतपूित कितचारी,

५) अन्य सरकारी वििागों के िूतपूित
कितचारी,

६) विस्थावपत स्िणतकार ।

b) in reference to Rule 5, Rule 15
was prescribed for procedure on direct
recruitment, which is being quoted below:
पररभशस्ट "घ"

[ननयि १५ (१) के नीचे की दटप्प़िी
देर्खए।

प्रनतयोधगता परीक्षा िें बैठने के भलए
आिेदन पत्र प्रस्तुत करने की प्रकिया :

१)
सधचि
ननकटति
सेिायोजन
कायातलय को ररजक्तयों की सूचना देगा।।
1154 INDIAN LAW REPORTS ALLAHABAD SERIES

२) सेिायोजन कायातलय के प्राधिकारी
यह जानकारी देने के भलए कक ककतनी ररजक्तयां
िरी जानी हैं, स्ियं सािान्य कायतिाही करेंग

३)
अभ्यथी
अपने
आिेदन-पत्र
सम्बंधित सेिायोजन कायातलय के िाध्यति से
सधचि को प्रस्तुत करेंगे, जो आिेदन पत्र
सेिायोजन कायातलय के िाध्यि से प्रस्तुत नहीं
ककए जायेंगे उन पर विचार नहीं ककया जायेगा।

४ ) सेिायोजन कायातलय आिेदन पत्र
कक पररननरीक्षा करेगा और उपयुक्त अभ्यधथतयों
के आिेदन पत्रसधचि के पास िेजेगा।

५) सेिायोजन कायातलय द्िारा िेजे
जाने िाले आिेदन पत्रों की संख्या उपलब्ि
ररजक्तयों की संख्या के चार गुने से कि न
होगी; ककन्तु प्रनतबन्ि यह है कक अभ्यधथतयों कक
संख्या ररजक्तयों की संख्या के चार गुने से काि
हो तो िी आिेदन पत्र िेजे जायेंगे।

६) सेिायोजन कायातलय सधचि को
उन अभ्यधथतयों के नाि और वििरण िी िेजेगा,
जजनके आिेदन पत्र अप्रसाररत न ककए जायें
और जजसके साथ आिेदन पत्र अप्रसाररत न
करने के कारण िी ददए जायेंगे।

७) यदद सधचि यह सिझे कक ककसी
ऐसे अभ्यथी की, जजसका आिेदन पत्र सेिायोजन
कायातलय द्िारा - रोक भलया गया हो, उन
कारणों से, जो अभिभलर्खत ककए जायेंगे, परीक्षा
िें बैठने की अनुज्ञा दी जानी चादहए तो ऐसे
अभ्यथी को परीक्षा िें बैठने की अनुज्ञा दी
जाएगी, ककन्तु प्रनतबन्ि यह है कक इस प्रकार
अनुज्ञात अभ्यधथतयों की संख्या ररजक्तयों की कुल
संख्या के १० प्रनतशत से अधिक न होगी।

c) in regard to appointment on the
post of Stenographer, पररभशस्ट "घ" is
relevant consideration for the said purpose,
which has already been quoted above.

8. In the light of aforesaid rules,
submission of learned Senior Counsel for
the petitioner is that there are 4 posts,
therefore, the reservation rules will not be
made applicable and the process of
selection of General Category candidate is
correct and does not suffer from any
infirmity or illegality. In case against 4
vacancies reservation is permitted of the
scheduled caste and scheduled tribes, it will
exceed 21% and there shall be 25%,
therefore, the procedure of appointment
against cadre strength of 4 vacancies
without complying the reservation is
correct.

9. His next submission is that the
advertisement, as held in the impugned
order, is not required to be published in the
newspaper inviting applications from open
market. In this regard, relevant rules have
been quoted above, which does not lay
down
the
procedure
for
making
advertisement of the vacancy.

10. His last submission is that the
appointment of the petitioner has been held
to be in violation of Government Order
dated 14.09.1989 (Anneuxre-5). In this
regard, his submission is that the rules have
been framed in exercise of power under
Article 309 of the Constitution of India and
a government order cannot over ride the
provisions contained under the same. In
support of his submissions, he placed
reliance upon following judgments:

a)
On
the
point
of
"after
successful
completion
of
probation,
employee should deemed to be confirmed",
he
placed
reliance
upon
following
judgments:

i) Jaswant Singh Pratap Singh
Jadeja
Vs.
Rajkot
Municipal
Corporation and others; (2007) 10 SCC.
4 All. Shikha Abrol Vs. State of U.P. & Anr.
1155

ii) Rajinder Singh Chauhan
and others Vs. State of Haryana &
others; (2005) 13 SCC 179.

b) On the point that "reservation
(Roster) for caste shall not be applicable if
posts are less than five in number in cadre
and that number of posts shall be
determined
individually
for
direct
recruitment and promotional cadre", he
placed reliance upon following judgments:

i) Heera Lal Vs State of U.P.
and others; (2011) 29 LCD 1.

ii) Netrapal Singh Vs. Chandra
Pal Singh and others; (2013) 2 ESC 535.

iii) Vinod Kumar Vs. State of
U.P. and others; (2011) 29 LCD 103.

iv) Smt. Vandana Gangwar Vs.
State of U.P. and others; (2011) 2
UPLBEC 1299.

c) On the point that "executive
order cannot over ride the statutory
provisions", he placed reliance upon
following judgments:

i) Vijay Singh and others Vs.
State of U.P. and others; (2004) 3
UPLBEC 2778.

ii) R.B. Dixit Vs. Union of India
and others; (2005) 1 UPLBEC 83.

11. On the other hand, learned
counsel for respondent No.2 submitted that
the impugned termination order does not
suffer from any infirmity or illegality and
the same is just and valid. He submitted
that the provisions of reservation against
cadre strength of 4 vacancy is also
applicable. In support of his submissions,
he
placed
reliance
upon
following
judgments:

i) Dr. Vishwajeet Singh and
others Vs. State of U.P. and others; 2009
(2) ESC 1387 (All) (DB).

ii) National Fertilizers Ltd. and
others Vs. Somvir Singh; (2006) 5 SCC
493.

12. He further submitted that the
person belonging to army having 2 year's
experience was required to be appointed
against the said vacancy, therefore, the
impugned order of termination is a just and
valid one.

13. Learned ACSC has also adopted
the same arguments, as has been advanced
by learned counsel for respondent No.2.

14. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well
as law reports cited by learned counsel for
the parties.

15. While entertaining the writ
petition, this Court passed an interim order
on 27.06.2002 corrected vide order dated
04.07.2002, which is being quoted below:

"All
the
respondents
are
represented by learned Chief Standing
Counsel.

As prayed counter affidavit may
be filed by the next date.

List this matter in the 1st week of
August, 2002.

It has been submitted by the
learned counsel for the petitioner that
petitioner was appointed in the year 1996
and she has completed probation period
and without any complaint of any kind, she
is continuing in service. It has been further
submitted that after giving a show cause
notice,
without
any
further
detailed
enquiry,
giving
opportunity
to
the
petitioner
to
participate
therein,
the
impugned order has been passed.
1156 INDIAN LAW REPORTS ALLAHABAD SERIES

In view of the aforesaid it is
hereby provided as an interim measure that
till further order of this court operation of
the order dated 22-06-2002 (Annexure-1 to
the writ petition) shall remain stayed and
that will not be given effect to."

16. Vide aforesaid impugned order,
the operation of the order dated 22.06.2002
contained as Annexure-1 to the writ
petition
was
stayed
with
a
further
stipulation that it will not be given effect to.
Meaning thereby, since 1997, the petitioner
is discharging all duties and functions and
has been paid salary and is on the verge of
retirement.

17. To resolve the controversy
involved in the matter, the judgments relied
upon by learned counsel for the parties are
being quoted below:

a) Judgments relied upon by
learned Senior Counsel for the petitioner:

i) Jaswant Singh Pratap Singh
Jadeja (Supra):

"11. Before, however, we embark
upon the legal questions, we must notice
that the appellant had not been confirmed
in his services from 1999 to 2003. The
power of Commissioner of Municipality to
appoint a person on temporary basis is
governed by the statutory rules. It has not
been shown before the High Court or
before us as to under what provisions of
law the period of probation was extended
from time to time. Applicability of the
provisions of the Act is not in dispute. It
may be true that such a contention was not
raised before the High Court, but if under
the statute, the period of probation could
not have been extended, he will be deemed
to have been confirmed on expiry of the
period of probation."

ii) Rajinder Singh Chauhan
and others (Supra) :

"11. The stand of the respondents
was that the appellants were not confirmed
employees. The appointment order of each
of the appellants contains the stipulations
which are as follows:

"1.
Your
appointment
as
Salesman is purely temporary.

2.
During
the
period
of
probation, your services are liable to be
terminated without giving any notice or
assigning any reason.

3. You shall be governed by the
terms and conditions contained in the Staff
Service Rules of the Federation, amended
from time to time."

This is a case where the period of
probation is fixed having regard to Rule
4(b) read with Rule 10 as quoted above.
Rule 10(6) no doubt provides that no
employee shall be deemed to have been
confirmed in the service unless specific
order in this regard is issued. Relying on
this provision, learned counsel for the
fourth respondent submitted that there was
no specific orders of confirmation and,
therefore, the appellants should be deemed
to have continued as probationers till the
date of termination of their services. A
similar stand was considered in Om
Prakash Maurya v. U.P. Coop. Sugar
Factories Federation. A Constitution Bench
of this Court in State of Punjab v. Dharam
Singh noted as follows:

"Where as in the present case, the
service rules fix a certain period of time
beyond which the probationary period
cannot be extended and an employee
appointed or promoted to a post on
probation is allowed to continue in the post
after completion of the maximum period of
probation without an express order of
confirmation, he cannot be deemed to
continue in that post as a probationer by
4 All. Shikha Abrol Vs. State of U.P. & Anr.
1157
implication. The reason is that such an
implication is negatived by the service rule
forbidding extension of the probationary
period beyond the maximum period fixed
by it. In such a case, it is permissible to
draw the inference that the employee
allowed to continue in the post on
completion of the maximum period of
probation has been confirmed in the post
by implication."

12. In High Court of M.P.
through Registrar and Ors. v. Satya
Narayan Jhavar (2001 (7) SCC 161), this
Court categorised the provisions for
probation as follows:

"11. The question of deemed
confirmation in service jurisprudence,
which is dependent upon the language of
the relevant service rules, has been the
subject-matter of consideration before this
Court, times without number in various
decisions and there are three lines of cases
on this point. One line of cases is where in
the service rules or in the letter of
appointment a period of probation is
specified and power to extend the same is
also conferred upon the authority without
prescribing
any
maximum
period
of
probation and if the officer is continued
beyond the prescribed or extended period,
he cannot be deemed to be confirmed. In
such cases there is no bar against
termination at any point of time after expiry
of the period of probation. The other line of
cases is that where while there is a
provision in the rules for initial probation
and extension thereof, a maximum period
for such extension is also provided beyond
which it is not permissible to extend
probation. The inference in such cases is
that the officer concerned is deemed to
have been confirmed upon expiry of the
maximum period of probation in case
before its expiry the order of termination
has not been passed. The last line of cases
is where, though under the rules maximum
period of probation is prescribed, but the
same requires a specific act on the part of
the employer by issuing an order of
confirmation and of passing a test for the
purposes of confirmation. In such cases,
even if the maximum period of probation
has expired and neither any order of
confirmation has been passed nor has the
person concerned passed the requisite test,
he cannot be deemed to have been
confirmed merely because the said period
has expired."

In above view of the matter, the
stand of the appellants that they were
deemed to have been confirmed at the end
of 24 months and they were permanent
employees is in terra firma. 'Salesmen'
belong to Class III of the category of
permanent employees. The definition of
"Probationer" given in Rule 4(b) fully
supports the appellants' stand that the
probation period shall not exceed 24
months in all. Therefore as was held in Om
Prakash's case, Satya Narayan Jhavar's
case and Dharam Singh's case (supra) the
appellants inferentially have to be treated
as permanent employees, and consequently
the benefits under Rule 35(b) were
available to them. But the same shall not be
in addition to what is payable under
Section 25-F. The amount which is higher
of the two i.e. of Section 25-F or Rule 35(b)
shall be paid to the appellants. If any
amount has already been paid in terms of
Section 25-F the same shall be adjusted
while making the payment under Rule
35(L), which shall be made within three
months. The appeal is allowed to the
aforesaid extent. No costs."

iii) Heera Lal (Supra):

"27. However, even assuming
that one such post can exist by applying the
rule of necessity and the principle of
rounding off, the rule of reservation of 21%
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
in
less
than
five
posts
cannot
be
implemented. Law is also acknowledged as
a technical dress. The prescription of law
therefore cannot be designed through an
interpretive tool to make it look upside
down. Neither the Government Order dated
8th March, 1973 or the subsequent orders
nor the provisions of U.P. Act No. 4 of
1994 project and support any such
proposition as advanced on behalf of the
State.
The
mathematical
calculation
prohibits anything further, and so do the
legal principles as noticed above. The
game of digits and numbers cannot be
taken further even by employing the
intuitive mind of the great mathematician
Ramanujam nor can such a view be made
possible through the best of forensic legacy
of law.

28. The rule of roster and the
concept of a running account of the roster
therefore would commence only if there are
five or more posts for extending the benefit
of 21% reservation in favour of the
scheduled caste category. A numerically
less strength figure, below the required
number, would therefore not allow the
roster to be operated, as a roster is there to
implement the rule of reservation and not a
tool to create reservation. As noticed in the
judgments of the Apex Court that in the
event of any any conflict between the
percentage
of
reservation
and
the
applicability of the roster, the former would
prevail. Thus, in no event can the
percentage of reservation be inflated or
enhanced by the illusionary or imaginative
application of the rule of roster. If such
interpretation as suggested by the State is
given then the same would amount to a
non-constructive
existence
of
a
miscalculated proof in the words of the
famous German Mathematician Leopold
Kronecker (1823-91). In legal terms this
would
violate
the
mandate
of
the
constitution and in cases of promotion it
would not be in conformity with the same."

iv) Netrapal Singh (Supra):

"8. The learned Single Judge by
the Judgment dated 30.6.2009 allowed the
aforesaid
Civil
Misc.
Writ
Petition
No.33002 of 2008 and quashed the said
order dated 16.6.2008 passed by the
District Inspector of Schools, Saharanpur.
The learned Single Judge, further directed
the
District
Inspector
of
Schools,
Saharanpur to accord approval in respect
of the promotion of the Petitionerrespondent No.1 from Class-IV post to
Class-III post in the institution in question.
The Respondent No.5-appellant (Netra Pal
Singh) thereafter filed the present Special
Appeal.

14. The Full Bench decision of
this Court lays down that either in cases of
promotion or direct recruitment, the rule of
reservation providing for 21 per cent
reservation to Scheduled Castes under the
U.P. Act No. 4 of 1994 as applicable to the
aided educational institutions cannot be
pressed into service where the number of
posts in the cadre is less than five.

15. In the present case, as noted
above, there are only three posts in the
cadre of Assistant Clerk. Therefore, in view
of the above Full Bench decision, there
could not be any reservation for Scheduled
Castes in respect of the vacant post falling
in promotional quota in the institution in
question. The order dated 16.6.2008 passed
by the District Inspector of Schools,
Saharanpur
was
therefore,
not
in
accordance with law. The learned Single
Judge has rightly quashed the said order
dated 16.6.2008."

v) Vinod Kumar (Supra):

"2. The appellant herein was
respondent no.6 in the writ petition filed by
one Anand Prakash. In the petition, the
issue was in respect of validity of
4 All. Shikha Abrol Vs. State of U.P. & Anr.
1159
promotion of the appellant and the order
passed by the District Inspector of Schools
approving his appointment. The judgment
of the learned Single Judge, after recording
a finding that there were only three posts of
Class-III, and considering the Full Bench
judgment of this Court in Heera Lal v. State
of U.P. & ors. 2010 (6) ADJ 1 (F.B.):2011
(29) LCD1 held that there could be no
reservation unless the number of posts is
more than five, and quashed the order
dated 21.06.2010 granting approval to the
appellant's appointment. The learned Judge
has also issued a direction to the Managing
Committee of the institution to act strictly
as per the parameters provided under
Regulation 2(2) of Chapter III of the U.P.
Act No.II of 1921, preferably within next
three months from the date of presentation
of a certified copy of the order.

5. In that view of the matter,
insofar as percentage of reservation is
concerned, the law could be as declared by
the Full Bench of this Court in Heera Lal
(Supra). The observations made by the
Division Bench in the case of Dr. Neeraj
Shukla (supra) as relied on by Sri Khare
would, therefore, be of no avail to the
appellant.

6. In the light of above, in our
opinion, there is no merit in the appeal,
which is accordingly dismissed."

vi) Smt. Vandana Gangwar
(Supra):

"4. A supplementary counter
affidavit has been filed by the District
Inspector of Schools dated 18.11.2006.
From Annexure-1 to the supplementary
counter affidavit as well as the facts on
record, it is an admitted position that there
are eight sanctioned posts of Lecturer, 50%
of the same are required to be filled by way
of promotion which would work out to four.
It is further admitted on record that on the
date Shyama Devi Sharma expired i.e.
15.6.1995, there were seven lecturers
actually working in the institution including
Shayama Devi Sharma. Out of seven
persons, three had been appointed by direct
recruitment and one post was vacant,
meaning thereby that the vacancy which
was occurred due to death of Shyama Devi
Sharma, was required to be filled by way of
promotion. It is against this vacancy that
the petitioner had claimed promotion as
Lecturer.

5. A Full Bench of this Court in
the case of Heera Lal and others v. State of
U.P. and others reported in (2010) 2
UPLBEC
1761
has
held
that
for
reservation being provided in favour of
Scheduled Caste category, there must be at
least five posts in the cadre concerned. The
Full Bench has further explained that
where the vacancies are required to be
filled by promotion as well as direct
recruitment, such number of posts have to
be individually determined for each source
of recruitment.

6. In view of the said Full Bench
judgment, it has to be held that since there
are only four posts within the promotion
quota in the cadre of Lecturer in the
institution, no reservation for Scheduled
Caste category candidate can be provided.
Consequently the reasons assigned in the
impugned order fall to ground. The order
impugned is therefore, quashed. Let the
respondent
No.3
(Joint
Director
of
Education,
Bareilly
Region,
Bareilly)
reconsider the claim of the petitioner for
regular promotion in accordance with the
Act, 1982 preferably within eight weeks
from the date a certified copy of this order
is filed before him. All consequential action
be taken accordingly."

vii) Vijay Singh and others
(Supra):

"9.
Similar
view
has
been
reiterated in Union of India v. Rakesh
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
Kumar, AIR 2001 SC 1877; Swapan Kumar
Pal and Ors. v. Samitabhar Chakroborty
and Ors., AIR 2001 SC 2353; Khet Singh v.
Union of India, (2002) 4 SCC 380;
Laxminarayan R. Bhattad and Ors. v. State
of Maharashtra and Anr., (2003) 5 SCC
413; and Delhi Development Authority v.
Joginder S. Monga, (2004) 2 SCC 297,
observing that statutory rules create
enforceable rights which cannot be taken
away by issuing executive instructions.

22. In Punit Rai v. Dinesh
Chaudhary, (2003) 8 SCC 204; Union of
India v. Naveen Jindal, (2004) 2 SCC 510;
and State of Kerala v. Chandra Mohan,
(2004) 3 SCC 429, the Apex Court held that
executive instructions cannot be termed as
law within the meaning of Article 13(3)(a)
of the Constitution.

23. In M/s. Bisamber Dayal
Chandra Mohan v. State of U.P. and Ors.,
AIR 1982 SC 33, the Hon'blc Supreme
Court explained the difference in a
statutory order and an executive order
observing that executive instruction issued
under Article 162 of the Constitution does
not amount to law. However, if an order
can be referred to a statutory provision and
held to have been passed under the said
statutory provision, it would not be merely
an executive fiat but an order under the
Statute having statutory force for the
reason that it would be a positive State
made law. So, in order to examine as to
whether an order has a statutory force, the
Court has to find out and determine as to
whether it can be referred to the provision
of the Statute.

30. In John Vallamattom and
Anr. v. Union of India and Ors., AIR 2003
SC 2902, the Supreme Court held that
Article 372 per force does not make a PreConstitutional
statutory
provision
Constitutional. It merely makes a provision
for the applicability and enforceability of
Pre-Constitutional laws subject to the
provisions
of
the
provisions
of
the
Constitution.

64. In the view of the above, we
reach the inescapable conclusion that
statutory rules cannot be set at naught by
issuing executive instructions. But the facts
of the instant case do no make the said
proposition of law applicable at all. As
herein the field is already occupied by the
provisions of Act, 1861 which is in
operation by virtue of the provisions of
Article 313 of the Constitution, thus. Rules,
1972 could not be attracted at all. The
Government Orders issued for fixing the
maximum
age
for
recruitment
on
subordinate police posts operate in an
entirely different field and are not in
conflict with the Rules, 1972. The case
stands squarely covered by the Apex Court
judgment in Chandra Prakash Tiwari
(supra) and, thus, it is not possible for us to
take any other view. The main submissions
made by Mr. Chaudhary that PreConstitutional
law
stands
abrogated
altogether by commencement of the Rules,
1972, is devoid of any merit. Therefore; our
answer to question No. 1 is that the field
stood
occupied
on
account
of
the
provisions of Section 2 of the Act, 1961.
The
Legislature
while
enacting
the
provisions of Section 2 of Act, 1961 itself
delegated the power to the statutory
authorities to fix the eligibility including
the age etc, The statutory authorities had
performed their duties in exercise of the
delegated powers from time to time without
any deviation therefrom."

viii) R.B. Dixit (Supra):

"7. In the above hierarchy if there
is conflict between a higher law and a
lower law then the higher law will prevail.
The executive instructions are part of the
fourth layer in the hierarchy, which is at
the lowest level, whereas an Act is part of
4 All. Shikha Abrol Vs. State of U.P. & Anr.
1161
the second layer and the Statutes made
under the Act are delegated legislation and
hence part of the third layer. The letters
dated 31.8.1998 and 30.3.1999 are only
executive instructions and hence they
belong to the fourth layer. Hence they are
neither Act nor Statutes. Hence in our
opinion the age of retirement of an
employee of the Indian Institute of
technology is 60 years and not 62 years
vide
Section
13(2).
We,
therefore,
respectfully disagree with the decision in
Raja Ram Verma's case.

8. The judgment in Raja Ram
Verma's case (supra) is hereby overruled.
The
writ
petition
is
consequently
dismissed."

b) Judgments relied upon by
learned counsel for respondent No.2:

i) Dr. Vishwajeet Singh and
others (Supra):

"74. In 4 cadre posts, if one post
is reserved for Scheduled Castes then
reservation for Scheduled Caster be 25%
which is impermissible. However, if one
post is treated to be reserved for Other
Backward Class then reservation for Other
Backward Class shall be only 25% i.e.
within 27% as prescribed under sub section
(1) of Section 3. Thus, out of four posts, one
post can be validly reserved for Other
Backward Class. Now an example of five
posts cadre is taken. Four five posts cadre,
if one post is reserved for Scheduled Castes
that will be 20% and will be within 21% as
prescribed under sub-section (1) of Section
3. One post for Other Backward Class can
also be very well reserved out of five cadre
posts since it shall be within the 27% as
prescribed. Thus, for giving reservation to
Scheduled Castes and Other Backward
Class, it is clear that there has to be five
posts in a cadre. In the roster point, the
first point which comes for Scheduled
Tribes is at serial No.47. Thus, even
according to roster, Scheduled Tribes can
get reservation at the 47th post. The above
view of ours is fully supported by the
judgment of the Supreme Court in the case
of R.S. Garg v. State of U.P. and others,
(2006) 6 SCC 430. The facts of R.S. Garg
case needs to be noted in some detail. In
the aforesaid judgment, both the appellant
and respondents were working as Assistant
Directors. The appellant having been
appointed in the year 1972 whereas the
third
respondent
was
appointed
on
13.1.1987 on adhoc basis. There were six
posts of Deputy Director of Factories in the
State of U.P. out of which four posts were
designated of Deputy Director of Factories
(Administration), one as Deputy Director
of Factories (Chemical) and one Deputy
Director of Factories (Engineering). The
post of Assistant Director of Factories was
the feeder post. The Government converted
the post of Deputy Director Factories
(Chemical) to Dy. Director Factories
(Administration). The third respondent was
promoted as Deputy Director of Factories
(Administration) as a reserved category
candidate,
which
promotion
was
challenged in the Supreme Court. One of
the
grounds
of
challenge
was
that
reservation to the post of Scheduled Castes
was illegal and unjust by reason thereof
percentage of reservation for promotion
cannot be raised from 21 to 33%. The
contention raised before the apex Court
has been noted in paragraph 6 of the
judgment to the following effect:

"6. The said writ petition had
been dismissed by the impugned judgment.
The contentions raised before the High
Court as also before us, on behalf of the
appellant are:

(i) The 3rd respondent was
illegally appointed as Assistant Director of
Factories as his services were regularized
without referring the matter to the Public
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
Service Commission as was required by
Rule 5(iii) of the 1992 Rules;

(ii) The order of promotion
passed in favour of the 3rd respondent was
male fide;

(iii) THe purported conversion of
the post of Deputy Director of Factories
(Chemical) to Deputy Director of Factories
(Admn.) being contrary to the 1992 Rules
and having been done with a view to favour
the 3rd respondent, was illegal;

(iv) The 3rd respondent was not
iligible to be promoted, as he did not
complete 5 year's substantive service on the
date of selection, i.e., in the year 1997 in
terms of Rule 5(iii);

(v) Reservation to the post in
favour of a Scheduled Caste was illegal
and
unjust
by
reason
thereof
the
percentage of reservation in promotion
would be raised from 21% to 33%.

(vi) The post of Deputy Director
of Factories (Administration) has already
been occupied by a candidate belonging to
the
reserved
category,
namely
Shir
Ghanshyam Singh."

ii) National Fertilizers Ltd. and
others (Supra):

"Taking note of some recent
decisions of this Court, it was held that the
State does not enjoy a power to make
appointments in terms of Article 162 of the
Constitution of India. It further quoted with
approval a decision of this Court in Union
Public Service Commission v. Girish
Jayanti Lal Vaghela & others [2006 (2)
SCALE 115] in the following terms:

"The appointment to any post
under the State can only be made after a
proper advertisement has been made
inviting
applications
from
eligible
candidates and holding of selection by a
body of experts or a specially constituted
committee whose members are fair and
impartial through a written examination or
interview or some other rational criteria
for judging the inter se merit of candidates
who have applied in response to the
advertisement
made.
A
regular
appointment to a post under the State or
Union cannot be made without issuing
advertisement in the prescribed manner
which may in some cases include inviting
applications
from
the
employment
exchange where eligible candidates get
their
names
registered.
Any
regular
appointment made on a post under the
State
or
Union
without
issuing
advertisement inviting applications from
eligible candidates and without holding a
proper
selection
where
all
eligible
candidates get a fair chance to compete
would violate the guarantee enshrined
under Article 16 of the Constitution."

It was clearly held:[Umadevi (3)
case, SCC p. 35, para 41]

"These binding decisions are
clear imperatives that adherence to Articles
14 and 16 of the Constitution is a must in
the process of public employment."

18.

On
perusal
of
aforesaid
judgments, it is evident that if under the
statute, the period of probation could not
have been extended, the appointment will
be deemed to have been confirmed on
expiry of the period of probation.

19. In the case in hand, the petitioner
has
been
granted
appointment
after
following due
procedure
i.e.
written
examination, short-hand, typing test and
interview and, thereafter, the petitioner was
recommended for appointment on the post
of
Stenographer
by
the
selection
committee.
Thereafter,
on
the
recommendation made by the selection
committee, the Deputy Director submitted
a note before respondent No.2 clearly
stating that the post was to be filled up
4 All. Jagdish Narayan Katiyar Vs. State of U.P. & Ors.
1163
through a candidate belonging to General
Category and, thereafter, appointment letter
was issued to the petitioner and she was
placed under probation period, which she
completed successfully. While entertaining
the writ petition, this Court granted an
interim order on 27.06.2002, which was
subsequently corrected vide order dated
04.07.2002 and in pursuance thereof, the
petitioner is discharging all duties and
functions and has been paid salary and is
on the verge of retirement and if there was
any
discrepancy
in
the
petitioner's
appointment, as raised vide termination
order dated 22.06.2002, it was to be
ascertained at the official level before
issuing appointment letter to the petitioner.

20.