- (1.) HEARD Sri Sunil Kumar Srivastava, Advocate, holding brief of Siddharth Khare, learned counsel for the petitioner and perused the record.
(2.) THE promotion of respondent no.5 on Class III post from class IV in Town Intermediate College, Mohammadabad, District Mau has been challenged on the ground that there are only three posts in Class III, one is Head Clerk and two Assistant Clerks. The post of Head Clerk is liable to be filled in by promotion to the extent of 100% and the post of Assistant Clerk being two, no question of reservation arise since quota is 21% and in case one of two posts is reserved for Scheduled Caste, it will make reservation 50% or 100%, which is illegal and unconstitutional.
(3.) THIS aspect has been considered in detail in several cases. Referring to an earlier Division Bench Judgment of this Court in Smt. Pholpati Devi Vs. Smt. Asha Jaiswal and others, 2009 2 ADJ 90, in Nem Singh Vs. State of U.P. and others,2009 5 ESC 3550, this Court considered a similar question and in para 8, 9, 10, 11 and 13 held as under: "8. The short questions up for consideration in this case are two as under: 1.Whether for applying reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes the quota is to be considered in respect to the total number of posts in the cadre irrespective of the source from which they are to be filled in; and 2.Whether in the light of Rule 10 and 14 of 1995 Rules the eligibility of the candidate in promotion quota is to be considered confining to a reserve category or the candidates available for promotion as a whole irrespective of the relevant category. 9. It cannot be disputed that reservation made for Scheduled Castes, Scheduled Tribes and Other Backward Classes in services vide Act, 1994 is applicable for appointment to the post of Lecturer in the College in the case in hand also. Section 3 thereof provides for the extent of reservation in favour of the above mentioned three categories and it reads as under: "3. Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes -(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub -section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, (a) in the case of Scheduled Castes twenty -one per cent; (b) in the case of Scheduled Tribes two per cent; (c) in the case of case other twenty seven per cent; backward classes of citizens. Provided that the reservation under clause (c) shall not apply to the category of other backward classes of citizens specified in Schedule II. (2) If, even in respect of any year of recruitment, any vacancy reserved for any category of persons under sub -section (1) remains unfilled, special recruitment shall be made for such number of times, not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to that category. (3) If, in the third such recruitment referred to in sub -section (2), suitable candidates belonging the Scheduled Tribes are not available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes. (4) Where, due to non -availability of suitable candidates any of the vacancies reserved under sub -section (1) remains unfilled even after special recruitment referred to in sub -section (2), it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub -section (1) shall not exceed fifty one per cent of the total vacancies. (5) The State Government shall, for applying the reservation under sub -section (1), by a notified order, issue a roster which shall be continuously applied till it is exhausted. (6) If a persons belonging to any of the categories mentioned in sub -section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub -section (1). (7) If, on the date of commencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall continue to be applicable till they are modified or revoked." 10. A bare perusal of Section 3(1) of Act, 1994 shows that the limit of reservation of vacancies prescribed therein is in respect to the direct recruitment and the roster prescribed under sub -section 5 is also with respect to sub -section 1, i.e., for direct recruitment. With respect to promotion sub -section 7 of Section 3 provides that the Government Orders as applicable providing for reservation in promotion shall continue to apply till they are modified or revoked. It is not in dispute that in the matter of promotion also reservation to the extent as provided under sub -section 1 of Section 3 to the above three categories has been made applicable. The purpose, however, for referring the above provision is to show that the legislature also has considered reservation in respect to direct recruitment and promotion separately treating the same different in the context of reservation. The reason is quite obvious. The persons who will be entitled to be considered in the two kinds of recruitment will be different inasmuch as the word "promotion" itself concede the persons who are already in service who will be considered but in case of direct recruitment it relates to selection and appointment from open market of the persons who are not already in service of the employer who has resorted to the concerned direct recruitment. The procedure and criteria for two kinds of selection is also different. Therefore, by no stretch of imagination it can be held that for the purpose of applying reservation under Section 3 of Act, 1994 the posts/vacancies as are available for direct recruitment can be clubbed with those which are to be filled in by promotion in order to work out the vacancy or post, if any, available for reservation. For example if there are 10 posts and all are to be filled in by direct recruitment, the reservation prescribed in sub -section 1 of Section 3 of Act, 1994 would be applicable to all the 10 posts but if 5 are to be filled in by promotion and 5 by direct recruitment, for the purpose of determining the vacancy, if any, available for reservation, both have to be considered separately and cannot be clubbed in order to find out the number of vacancies/posts available for reservation in a particular category. 11. A similar controversy came to be considered before this Court in Smt. Pholpati Devi where there were 7 sanctioned posts of Lecturers and taking the same together the authorities decided to fill in one post from reserve category, i.e., scheduled castes. The Court held as under: "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 Vs. State of U.P. and others, 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 candidates, after every four posts, in our considered opinion, does not meet the constitutional requirements." Thus, it is clear that in no manner a vacancy can be filled in which would exceed the prescribed limit of reservation as the extent of reservation is maximum and it cannot be exceeded thereto. In the case in hand, one of the vacancy if treated to be reserved for scheduled caste candidate out of four vacancies, the reservation would come to 25%, which would exceed the maximum extent of reservation prescribed for scheduled caste candidates under the Statute. That being so, such reservation could not have been upheld and the appointment and promotion of respondent no. 1 treating one post of lecturer reserved for scheduled casts in promotion quota, therefore, was illegal and has rightly been set aside by Hon'ble Single Judge." "13. In view of the above exposition of law the clubbing of vacancies which were to be filled in by promotion alongwith those which were to be filled in by direct recruitment was impermissible in law and the impugned order having been passed ignoring this aspect of the matter is wholly illegal." This is also in consonance with the law enunciated by Full Bench in Heera Lal Vs. State of U.P. and Ors., 2010 6 ADJ 1.;