Arvind Kumar Tripathi, J. - (1.) LIST revised. Heard learned counsel for the petitioner, learned Standing Counsel and perused the record. The present writ petition under Article 226 Constitution of India has been filed with the prayer to issue a writ of certiorari quashing the impugned order dated 22.11.2008 passed by the respondent No. 3, District Inspector of School, Mainpuri annexed as Annexure 7 to the writ petition and further to issue a writ of mandamus directing respondents to promote the petitioner on the class III post. Learned counsel for the petitioner submitted that the Madan Inter College, Bhogaon, Mainpuri is a recognise institution under the provisions of U.P. Intermediate Education Act, 1921. The petitioner was initially selected and appointed as class 4th employee in the aforesaid institution as Daftari on 15.4.1998. The work of the petitioner was always to the best satisfaction of the authority concerned. The qualification of the petitioner is double M.A. in Sociology and Political Science. There are three sanctions class HI post in the institution including Head Clerk out of these three posts of class III one Raghvendra Singh was appointed in dying -in -harness rules i.e. under direct recruitment quota, which was adjusted in the aforesaid institution from other institution on 23.8.2007. Thereafter, Head Clerk Sri Umesh Chandra Mishra retired on 31.7.2008 and Senior Clerk Sri Raghvendra Singh was promoted to the post of head clerk on 21.11.2008 hence one post of clerk fell vacant. The aforesaid post was to be filled under the promotional quota. The other two persons namely Sri Raghvendra Singh and Yogendra Singh were recruited under the direct recruitment. Sri Yogendra Singh was recruited from other institution under dying -in -harness rules. Hence the post of clerk, which fell vacant after promotion of Raghvendra Singh was to be filled by promotion. The petitioner being senior most class 4th employees of the institution was entitled for the promotion on class III post as he was placed at serial No. 1. The petitioner was appointed on 15.4.1998 while the respondent No. 6 was appointed on 1.7.2001. The respondent No. 4 vide letter dated 21.11.2008 send description to the respondent No. 3, District Inspector of School, Mainpuri. The name of the petitioner and the respondent No. 6 for approval was forwarded for filing the vacant post of clerk. The respondent No. 5 send a letter dated 22.11.2008 recommending the name of the petitioner for promotion on the post of clerk (Class III) on the basis of seniority and eligibility. The recommendation dated 22.11.2008 has already been annexed as annexure 6 to the writ petition. The promotion of the petitioner was recommended by the Principal and other Senior Teachers also on the basis of his seniority, work and qualification. However, by the order dated 22.11.2008 the name of respondent No. 6 Sri Ram Prasad class -IV employee was recommended for promotion on the post of class -Ill. He further contended that though in the impugned order there was no averment that being schedule caste candidate his name was recommended for the post of Assistant Clerk, however, in counter -affidavit it was mentioned that he was schedule caste hence his name was recommended under the quota. There was only two sanction post of Assistant Clerk and one post comes under the promotional quota and now if one post for promotional quota is given to the reserved category then it means that 100% reservation was given under the promotional quota, which is illegal and against the provisions. He further submitted that admittedly petitioner was senior most class IV employee of the institution, he was eligible and highly qualified hence he was to be promoted. Earlier when one post fell vacant it was adjusted to appoint one candidate under the dying -in -harness rules from other institutions and if other post when fell vacant was given to the person who was junior to the petitioner. The petitioner also belongs to the O.B.C. category but apart from the reservation petitioner was entitled on the basis of seniority, qualification and satisfactory work. Hence the impugned order is liable to be set aside. The counsel for the petitioner relied the Full Bench decision of this Court in Heera Lal v. State of U.P. and others,, 2010 (6) ADJ 1 (FB) and Division Bench Judgment of this Court in Jawahar Lal and another v. Deputy Director of Education (Madhyamik) Vindhyachal Region, Mirzapur and others,, 2010 (10) ADJ 313 (DB).
(2.) LEARNED Standing Counsel admitted the legal position that if there was only two post of Assistant Clerk and three post of Clerk including the Head Clerk, which is below five post then reservation on 21% cannot be applied in view of the full Bench decision in case of Hira Lal v. State of U.P. (Supra). Considered the submission of counsel for the parties. Admittedly, there is no dispute that the petitioner is senior most class IV employee and he was working and appointed as Daftari. Though he is a class IV employee but in grade he is senior to other class IV employee. This is admitted fact that in the Madan Inter College the petitioner and respondent Nos. 6 and 7 were working. There are only three post of clerk including the Head Clerk and admittedly there are only two post of Assistant Clerk in which one post was to be filled under promotional quota. If the promotion is given on the basis of reservation to the reserved category then certainly it is 100% reservation, which would be beyond limit prescribed under the law framed by the legislation. From the impugned order, it is not clear that respondent No. 6 was appointed being under the reservation quota. However, it has been clarified in the counter -affidavit by one Mr. Vijay Pal Singh, District Inspector of School, respondent No. 3 in para 8 that respondent No. 6, who is schedule caste category has made complaint before the minority commission for the post reserved for schedule caste. In para 9 of the counter -affidavit it was mentioned that it was the duty of the committee of management to indicate in its resolution for promotion of employee and to decide whether the post are to be filled by the General or OBC or Schedule category. In para 12 of the counter -affidavit it has been mentioned that the committee of management sent another resolution for promotion of respondent No. 6 of SC category since the post was to be filled by the SC category and the resolution was accepted and was approved by order dated 22.11.2008 for promotion of the respondent No. 6. It was further stated in para 13 that backlog quota was to be filled, as per Government Order dated 1.2.2006 and 17.11.2006 and respondent No. 6 was eligible in reserved category for promotion. When there was only two post of Assistant Clerk then one post, which was for promotional quota cannot be filled under the reserved category because as held by the Full Bench of this Court the percentage of reservation would come to 100% in the present case. If the post of Head Clerk is also included then there are three post of clerk in the institution. There are two post of Assistant Clerk and 50% is reserved for promotion quota. If one post is filled up by the reserved category of the schedule caste that will also be more than 50% and the maximum limit for the schedule caste SC/ST is 21%. Hence if the number of post is below five the respondent No. 6 was not entitled to be promoted on reserved category. However, according to seniority he may be considered. The matter referred before the Full Bench in case of Hira Lal (Supra) was whether the roaster in respect of reservation can be applied with regard to the promotion in respect of class III post in Intermediate College, where the number of posts is less then five. It was held that the rule of reservation providing for 21% reservation to scheduled caste cannot be pressed into service where number of posts in the cadre is less than five. Paragraphs 21, 22, 23, 33 and 34 of full bench decision are quoted hereinbelow. 21. In the present case, the rule of reservation as contained in U.P. Act No. 4 of 1994 if applied then out of three posts, if one of the posts is given to the scheduled caste category, the reservation would exceed 21% and reach 33%. It would, therefore, violate the maximum permissible limit as contained in the statutory provision. The Government Order dated 8th March, 1973 can be saved only to the extent of its applicability which in our opinion does not mandate the reservation of one post even if the total number of posts is less than five. Clause (2) of the said Government order is in relation to the availability of vacancies to be filled up by way of promotion, where it is provided that if in the year of recruitment, the number of vacancies available under the reserved category or the category of carry forward vacancies is only two, then in that event one of the vacancies can be treated to be of the reserved category. If only one vacancy is available in the year of recruitment in the said category then the same shall be treated as unreserved. The relevant clause is quoted below: 22. Having carefully examined the said Government Order dated 8th March, 1973 we do not find any such provision for applying the rule of reservation for schedule caste in cases where the total cadre strength is less than five. The Government Order does not enunciate any such principle which can be treated to be in addition to the prescription of the outer limit of percentage of reservation for scheduled castes as provided for in the 1994 Act. The said Government Order only explains the status of the vacancies if the number of vacancies is only two. 23. The issue relating to the distinction between the words post, vacancy and cadre strength has been clearly explained in the decision of R.K. Sabharwal v. State of Punjab, : (1995) 2 SCC 745. Paragraph 6 is quoted herein below: The expressions 'posts' and Vacancies', often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the Vacancy' to occur. The cadre -strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre -strength. The concept of Vacancy' has no relevance in operating the percentage of reservation. 33. In such a situation wherever the issue of reservation arises one will have to keep in mind the strength of the cadre as also the source of recruitment which is governed by a statutory rule. The rule providing for the source of recruitment therefore will have to be balanced in such situations. The fluctuating strength of a cadre will therefore have to be kept in mind for applying the rule of reservation. 34. In view of the reasons in support of the conclusions drawn herein above our answer to the questions posed are as follows: 1. Question No. 1 is answered in the negative holding that either in cases of promotion or direct recruitment, the rule of reservation providing for 21% reservation to scheduled castes under U.P. Act No. 4 of 1994 as applicable to aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five. 2. The decision in the case of Mahendra Kumar Gond v. State of U.P.,, 2009 (6) ADJ 674, having been rendered without taking notice of the two Division Bench judgments in the case of Dr. Vishwajeet Singh (supra) and Smt. Pholpati Devi (supra) is not approved. The Judgments of Dr. Vishwajeet Singh is hereby approved as laying down the law correctly on the issue raised herein. According to Division Bench of this Court in case of Jawahar Lal (Supra) Daftari is also class IV employee but in grade he is senior in cadre of class IV employee and being higher in grade he has to be treated senior. Hence the petitioner was senior most in class IV and respondent No. 6 was junior being serial No. 6. There is no dispute regarding the seniority. Hence in view of the fact and aforesaid discussion, the impugned order dated 22.11.2008 passed by the respondent No. 3, District Inspector of School, Mainpuri, which is against the provisions, is hereby quashed. The respondent No. 3 will consider the approval of promotion of the petitioner, afresh, preferably, within two months, after filing of the certified copy of this order. Accordingly, present writ petition is allowed. No order as to cost. ;