Satyendra Singh Chauhan, J. - (1.) HEARD learned Counsel for the Petitioner, learned Standing Counsel as well as counsel for the Service Selection Board.
(2.) SUBMISSION of learned Counsel for the Petitioner is that while working in LT Grade vacancy fell vacant in the College on the post of Lecturer in Geography on account of retirement of one Harihar Singh on 30.6.2001. The post of Lecturer in geography fell substantively vacant on 1.7.2001. He further submits that out of eight vacancies of Lecturer, which were available in the College, six Lecturers were working as direct recruits and two Lecturers were working in the promote quota. The quota of working of various lecturers in the College has been given in para eight of the writ petition and as and when vacancy fell vacant on the post of Lecturer, the Petitioner claimed promotion on the post of Lecturer in Geography. During the period of consideration of the aforesaid claim of the Petitioner, a direct recruit candidate was recommended by the Board on the post in question in the reserved category. Counsel for the Petitioner submits that the said Lecturer has been adjusted in another institution and no reservation shall apply in respect of the promote quota vacancies, but in spite of that reservation has been made on misconceived notion. In support of his contention, he has placed reliance upon the decision of this Court in the case of Smt. Pholpati Devi v. Smt. Asha Jaiswal and Ors., 2009 (2) ESC 1011 (All) (DB). Learned Standing Counsel, on the other hand, by filing counter affidavit has submitted that since there was no adequate reservation, therefore, a requisition was sent for a candidate belonging to reserved category and in pursuance thereof a candidate belonging to the reserved category was recommended. The opposite parties, therefore, have committed no illegality in recommending the name of a person belonging to reserved category.
(3.) I have heard learned Counsel for the parties and perused the dictum laid down in the case of Smt. Pholpati Devi (supra), wherein in para seven of the judgment it has been laid down as under: 7. In the case in hand, there were only seven sanctioned posts of Lecturers wherein 50% were to be filled in by direct recruitment and 50% by promotion. Therefore, at the best four posts would have been available for one source of recruitment, i.e. direct recruitment or promotion. The reservation for scheduled castes is 21%. If we treat one of the vacancies in either of the source of recruitment in the institution as reserved for scheduled caste, it would be more than 21%. The Apex Court in R.S. Garg v. State of U.P. and Ors. : 2006 (6) SCC 430, has held as under: 40. We are not concerned with the reasonableness or otherwise of the percentage of reservation. 21% of the posts have been reserved for Scheduled Tribe candidates by the State itself. It, thus, cannot exceed the quota. It is not disputed that in the event of any conflict between the percentage of reservation and the roster, the former shall prevail. Thus, in the peculiar facts and circumstances of this case, the roster to fill up the posts by reserved category after every four posts, in our considered opinion, does not meet the constitutional requirements.;