- (1.) Heard Sri Ashok Khare, learned senior counsel, assisted by Sri Siddharth Khare for the petitioner and the learned Standing Counsel for the respondents 1 to 4.
(2.) Sri Ashok Khare submitted that the state-respondents have already filed their counter affidavit to which rejoinder affidavit has also been filed therefore the matter may be heard finally. Sri Khare further submitted that although notice was issued to the respondent No.5 (the Committee of Management of the college concerned) and pursuant thereto steps were also taken by the petitioner to serve the said respondent by registered post/A.D., but the said respondent is not interested in contesting the case against the petitioner, inasmuch as, the respondent No.5 itself had proceeded to forward the candidature of the petitioner and as the dispute in this petition is confined only to the issue whether the post in question should be treated as reserved for a scheduled caste candidate or not, there is no necessity to await a response from respondent No.5. The learned standing counsel does not dispute the aforesaid position, accordingly, with the consent of the learned counsel for the parties, this petition is being finally decided at the admission stage itself.
(3.) The admitted facts of the case are that Chacha Nehru Smarak Inter College, Govind Nagar, Kanpur Nagar (hereinafter referred to as the institution) is a recognised and aided educational institution governed by the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971. There were six sanctioned posts of Lecturer in the institution. The post of Lecturer in English fell substantively vacant, consequent to retirement of one Rajendra Kumar Shukla, on 30.06.2008. Out of the aforesaid six posts, as four posts were filled by direct recruitment, therefore, the post, which fell vacant on retirement of one Rajendra Kumar Shukla, was to be filled by promotion under 50% quota. However, it appears that as all the remaining posts were filled by general category candidate and there being no eligible scheduled caste category candidate in the institution for promotion, a requisition was sent to fill up the said post by direct recruitment from a scheduled caste category candidate. It is the case of the petitioner that as there were only three posts available in the institution to filled by promotion, therefore, roster for reservation could not have been applied. Accordingly, as there were eligible general category candidates available in the institution, the District Inspector of Schools, Kanpur Nagar, vide communication dated 12.06.2009, addressed to the Secretary, UP Secondary Education Services Selection Board, Allahabad, canceled the requisition sent for filling up the post of Lecturer in English by direct recruitment. It is the case of the petitioner that, thereafter, on 26.06.2009, the District Inspector of Schools, Kanpur Nagar forwarded all the papers pertaining to promotion of the petitioner, submitted by the Principal of the institution, upon resolution of the Committee of Management, to the Joint Director of Education, Kanpur. But the Joint Director of Education, Kanpur Region, Kanpur, vide communication dated 16.07.2009 addressed to the District Inspector of Schools (Annexure 7 to the petition) returned the papers to the D.I.O.S., thereby informing him that as per the roster, out of the six posts of Lecturer in the institution, two posts were required to be filled by candidates from the Scheduled Caste category, therefore, there was no basis to forward papers of a general category candidate for promotion. Consequent to the communication dated 16.07.2009, the District Inspector of Schools returned all the papers pertaining to promotion of the petitioner, vide communication dated 22.07.2009 (Annexure No.8 to the petition), and informed the management to fill up the post according to the roster by a candidate belonging to the Scheduled Caste. It is these communications dated 16.07.2009 and 22.07.2009 that have been challenged in this petition with a prayer to consider the promotion of the petitioner for the post of Lecturer.;