# Vijay Kumar Upadhyay v. Regional Dy. Director of Education and others

- **Citation:** (2010) 1 ILRA 294
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-11
- **Case number:** Civil Misc. Writ Petition No. 36379 of 2003
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-upadhyay-v-regional-dy-director-of-education-and-others-41607
- **Pages:** 4

## Headnote

Sri V. Singh
Sri Yashwant Singh 'Subasha'
Sri Kaushal Kumar Singh
Sri Pradeep Verma
C.S.C.

U.P. Intermediate Education Act 1921Chapter III, Regulation-2-promotion on
class III post under 50% promotion
quota-only
3
post
available
under
promotion quota-petitioner being senior
most class 4th employee was proposed to
be promoted under General categoryclaim about promotion under SC/ST
reservation quota-not available if the
vacancy is less than 5 post in view of law
1 All] Vijay Kumar Upadhyay V. Regional Dy. Director of Education and others

295
laid down by Division Bench decision of
Vishwajeet Singh case.

Held: Para 14
Since the vacancy is within 50% quota
for promotion and there is a candidate
available for such promotion in the
category of Class-IV employee, namely
Sri Phool Chand Tiwari, this Court holds
that the promotion granted in his favour,
as approved by the District Inspector of
Schools under order dated 06th June,
2002, is strictly in accordance with law.
Case law discussed:
2006 (4) ALJ 438, 2009(3) ESC 1652, AIR
1995 SC 1371, (2009) 4 UPLBEC 3066.

## Text

294 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Schools was authorized to make the
appointment under the aforesaid Rules
which have been framed under Article
309 of the Constitution or it is the
Principal of the institution, who was
authorized to make the appointment under
the provisions of the Education Code.

9. The respondent - State has been
unable to point out any other Rule apart
from the provisions of the Education
Code which may empower the Regional
Deputy Director of Education to make
appointment on the post of class-IV
employee in the office subordinate to the
same. The impugned order, which recites
that the Regional Deputy Director of
Education is the authority competent,
therefore, has no legs to stand on the own
showing of the respondents, who state
that it is the Principal of the institution,
who
is
the
appointing
authority.
Accordingly, the impugned order dated
28.9.1994 deserves to be set aside on this
ground alone.

10. Apart from this, once Rules have
been framed under Article 309 of the
Constitution then in the hierarchy of the
legislation, the said Rule will prevail. The
Education
Code,
which
has
been
compiled as an executive instruction, does
not have statutory force where the field is
already occupied under the Rules. The
Full Bench decision of this Court in the
case of Magan Ram Yadava Vs. Deputy
Director of Education and others, (1980)
UPLBEC 6 (FB) clearly supports the
aforesaid conclusion drawn. Learned
Standing Counsel has been unable to
point out any other Rule which may
substantiate the plea taken in the counteraffidavit that the Principal was the
appointing authority and not the District
Inspector of Schools. In this view of the
matter on all counts the order dated
28.9.1994 cannot be sustained.

11. Accordingly, the writ petition is
allowed and the order dated 28.9.1994 is
quashed. The petitioner shall be entitled
to all consequential benefits forthwith.
The respondents shall carry out the
direction herein above within four weeks
from today.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 36379 of 2003
With
Civil Misc. Writ Petition No. 13104 of 2003

Phool Chand Tiwari

...Petitioner
Versus
Joint Director of Education and others

 ...Respondents

Counsel for the Petitioner:
Sri R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri V. Singh
Sri Yashwant Singh 'Subasha'
Sri Kaushal Kumar Singh
Sri Pradeep Verma
C.S.C.

U.P. Intermediate Education Act 1921Chapter III, Regulation-2-promotion on
class III post under 50% promotion
quota-only
3
post
available
under
promotion quota-petitioner being senior
most class 4th employee was proposed to
be promoted under General categoryclaim about promotion under SC/ST
reservation quota-not available if the
vacancy is less than 5 post in view of law
1 All] Vijay Kumar Upadhyay V. Regional Dy. Director of Education and others

295
laid down by Division Bench decision of
Vishwajeet Singh case.

Held: Para 14
Since the vacancy is within 50% quota
for promotion and there is a candidate
available for such promotion in the
category of Class-IV employee, namely
Sri Phool Chand Tiwari, this Court holds
that the promotion granted in his favour,
as approved by the District Inspector of
Schools under order dated 06th June,
2002, is strictly in accordance with law.
Case law discussed:
2006 (4) ALJ 438, 2009(3) ESC 1652, AIR
1995 SC 1371, (2009) 4 UPLBEC 3066.

(Delivered by Hon'ble Arun Tandon, J.)

1. These two writ petitions pertain to
the same post of clerk in Mathura Inter
College Naharpur, Azamgarh. Facts in
short giving rise to the present writ
petition are as follows:

2. Mathura Inter College Naharpur,
Azamgarh is an institution aided and
recognized under the provisions of the
Intermediate Education Act. There are
three sanctioned post of Class-III in the
institution. At the relevant point of time
three persons were working against the
sanctioned posts, namely Mohd. Iqbal,
Balbir Singh Yadav and Ramdev Bind.
First two candidates were appointed by
direct recruitment, while Sri Ramdev
Bind was appointed by way of promotion.
Sri Balbir Singh Yadav retired on
30.09.2000. The vacancy so caused fell
within the 50% quota reserved for
promotion in view of Regulation 2 of
Chapter-III of the Regulations framed
under the Intermediate Education Act
read with note appended thereto. There
was no candidate belonging to scheduled
caste working on Class-III post.

3. Ram Dhani (petitioner in Writ
Petition No. 13104 of 2003), who claims
to be a member of scheduled caste,
therefore, made an application requesting
the management of the institution to fill
the vacancy from a scheduled caste
candidate and since no person belonging
to scheduled caste was working in the
institution on Class-IV post eligible for
such promotion, it was further prayed that
the post be filled by direct recruitment.
Since this application of the Ram Dhani
was not being considered and the
committee
was
not
advertising
the
vacancy for direct recruitment within the
reserved category, Sri Ram Dhani filed
Writ Petition No. 11629 of 2001. The writ
petition was decided under the judgment
dated 29th March, 2001 and the District
Inspector of Schools was directed to
consider the grievance of Sri Ram Dhani.

4. In the meantime it appears that
the Committee of Management passed a
resolution
on
16th
October,
2001
recommending the promotion of Sri Phool
Chand Tiwari (petitioner in Writ Petition
No. 36379 of 2003) who was working as
a Class-IV employee in the institution and
was possessed of all the essential
qualifications for such promotion. The
District Inspector of Schools by means of
the order dated 08th May, 2002 approved
the promotion of Sri Phool Chand Tiwari.

5. This, according to Ram Dhani,
was illegal for two reasons (a) because of
non-consideration of his grievance as per
the direction of this Court dated 29th
March, 2001, referred to above and (b)
because of non-consideration of issue that
the vacancy fell within the quota reserved
for scheduled caste. Sri Ram Dhani
therefore approached the Joint Director of
Education.
The
Joint
Director
of
296 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Education by means of order dated
29.07.2003 directed the District Inspector
of Schools to cancel the approval granted
to the promotion of Sri Phool Chand
Tiwari, in the background that the
vacancy was within the quota for
scheduled caste and that a public
complaint has been made by Sri Ram
Dhani. This order of the Joint Director of
Education dated 29th July, 2003 has been
challenged by Sri Phool Chand Tiwari by
means of Writ Petition No. 36379 of
2003.

6. The District Inspector of Schools
forwarded a letter dated 01st July, 2003 to
the Joint Director of Education informing
him that there are only three Class-III post
sanctioned in the institution and therefore
no quota of scheduled caste is to be
provided for having regard to 21%
reservation provided for the purpose. This
letter of the District Inspector of Schools
has been challenged by Sri Ram Dhani by
means of Writ Petition No. 13104 of
2003.

7. I have heard learned counsel for
the parties and have gone through the
records of the writ petition.

8. Two issues arise for consideration
in these writ petitions (a) whether the
vacancy caused due to retirement of
Balbir Singh Yadav on 30.09.2000 falls
within 50% quota for promotion and (b)
whether the vacancy has to be reserved
for scheduled caste category candidate
and if so its effect.

9. So far as the first issued is
concerned, this Court may only refer to
the provisions of Regulation 2 of ChapterIII of the Regulations framed under the
Intermediate Education Act read along
with the note appended thereto. The note
specifically
provides
that
while
calculating 50% of quota for promotion,
half and more than half shall be treated to
be one. Since in the facts of the case there
are three sanctioned post and the
promotion quota provided is 50% of the
cadre post, it would logically follows that
one and half posts would be the
promotion quota. Since half is to be read
as one, it would therefore result in two
post being within the promotion quota.

10. The issue in that regard has been
settled
under
the
Division
Bench
judgment of this Court in the case of Jai
Bahgwan Singh vs. District Inspector of
Schools and others; 2006 (4) ALJ 438.
The issue no. 1 is therefore answered
accordingly.

11. So far as the issue no. 2 is
concerned, it is an admitted position that
there are only three sanctioned post of
Clerk in the institution. The reservation
provided for scheduled caste category, as
admitted to the parties, is 21%.

12. A Division Bench of this Court
in the case of Dr. Vishwajeet Singh and
others vs. State of U.P. and others;
2009(3) ESC 1652, in paragraph 87 and
88 it has held that for reservation being
applied in favour of scheduled caste
category candidate there should be at least
5 post in a cadre. The Division Bench has
placed reliance upon the Constitution
Bench judgment of the Hon'ble Supreme
Court in the case of R.K. Sabharwal and
others v. State of Punjab and others;
AIR 1995 SC 1371.

13. In view of the said Division
Bench judgment of this Court in the case
of Vishwajeet Singh (to which I was
1 All] Phool Chand Tiwari V. Joint Director of Education and others

297
party), there is no other option but to hold
that since there are only three post in
Class-III cadre in the institution, no post
can be reserved for scheduled caste
category candidate. Consequently, Sri
Ram Dhani can have no claim in respect
of said post on account of reservation.

14. Since the vacancy is within 50%
quota for promotion and there is a
candidate available for such promotion in
the category of Class-IV employee,
namely Sri Phool Chand Tiwari, this
Court holds that the promotion granted in
his favour, as approved by the District
Inspector of Schools under order dated
06th June, 2002, is strictly in accordance
with law.

15. Counsel for the petitioner-Ram
Dhani, however, brought to the notice of
this
Court
another
Division
Bench
judgment of this Court in the case of
Mahendra Kumar Gaur vs. District
Inspector of Schools (2009) 4 UPLBEC
3066, wherein it has been held that in the
institution if there are only three post and
no person of scheduled caste has been
appointed, the vacancy caused shall stand
reserved for scheduled caste as per the
roster and shall be filled by such reserve
category of the candidate only.

16. The Division Bench in its
judgment in the case of Mahendra Kumar
Gaur (supra) has not noticed the earlier
Division Bench judgment of this Court in
the case of Dr. Vishwajeet Singh (supra)
and therefore there is absolutely no
conflicting opinion qua the law viz-a-viz
the applicability of reservation to the
cadre which does not have minimum 5
post. This Court finds that the judgment in
the case of Mahendra Kumar Gaur
(supra) is clearly distinguishable.

17. The writ petition filed by Sri
Phool Chand Tiwari (i. e. Writ Petition
No. 36379 of 2003) is allowed and it is
held that his promotion is strictly in
accordance with law. The authorities shall
take appropriate action accordingly. Order
dated 29.07.2003 is hereby quashed. The
writ petition filed by Sri Ram Dhani (i. e.
wpon 13104 of 2003) is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 41816 of 2005
Connected with
Civil Misc. Writ Petition No. 43168 of 2005

Pankaj Kumar

...Petitioner
Versus
Hon'ble High Court of Judicature at
Allahabad Thru Registrar General and
others

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri K. Shahi,

Counsel for the Respondents:
Sri Amit Sthalekar
Sri K.R. Sirohi
Sri Rajeev Gupta
C.S.C.,

Constitution
of
India,
Art.
226Cancellation of appointment-petitioner
were
selected
on
the
post
of
stenographer-3 poser advertised-against
that
7
appointment
made-noticing
irregularity-four
excess
appointments
cancelled-on direction of administrative
judge to accommodate join vacancy in
fast
Track
Court-working
as
such-