- (1.) This writ petition is directed against an order dated 8.1.1999, whereby financial approval to petitioner's appointment has been declined by the District Inspector of Schools, Varanasi, on the ground that requisite posts meant for reserved category candidate since have not been filled, as such, an appointment for unreserved category candidate cannot take place. Challenge has also been laid to a consequential order of the Principal, intimating the petitioner that as approval has not been granted to petitioner's appointment, as such, his appointment is cancelled. Aggrieved by the two orders, petitioner has filed the present writ petition.
(2.) Sri H.P. Sahi, who appears for the petitioner, challenges the order of Inspector on the ground that there exists 09 posts of Class-IV employees, against which three persons belonging to Other Backward Classes are already working. One post is occupied by a person belonging to Scheduled Castes category i.e. Smt. Vimla Devi. Petitioner has been appointed against a substantive post, which has fallen vacant in the institution of Class-IV category. Papers were forwarded to the Inspector for grant of approval, which has been declined by the order impugned. Learned counsel submits that the quota reserved for Scheduled Castes category is 21%, and considering the cadre strength to be 09, only one post would be available for a Scheduled Castes category candidate, and in case, reservation is allowed for two posts to Scheduled Castes category candidate, then the reservation quota would exceed 21%. Learned counsel submits that this is impermissible, in view of the judgment of Division Bench of this Court in Smt. Pholpati Devi Vs. Smt. Asha Jaiswal and others, 2009 2 ADJ 90. Paras-7 and 8 of the report, which is relevant for the purposes, are reproduced:- "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 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. This, 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." 8. 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 castes in promotion quota, therefore, was illegal and has rightly been set aside by Hon'ble Single Judge."
(3.) Learned counsel for the petitioner also placed reliance upon a Full Bench judgment of this Court in Heera Lal Vs. State of U.P. and others, 2010 3 ESC 2091, to contend that the reservation available to a Scheduled Castes category candidate cannot be stretched beyond 21%, and the reservation would be available only if there are 05 posts in the cadre. The Division Bench judgment of this Court in Smt. Pholpati Devi has been affirmed by the Full Bench. It is submitted that since there are three persons belonging to Other Backward Classes category already working in the institution, in case two posts are reserved for Scheduled Castes category candidate then over all reservation contemplated at 50% would be breached, and the same is impermissible.;