- (1.) TARUN Agarwala, J. The petitioner was initially appointed as an Assistant Teacher in C. T. Grade in K. P. Girls Inter College, Allahabad on 19. 10. 1972 and, in the year 1980, the petitioner was promoted as an Assistant Teacher in L. T. Grade. The post of the Lecturer in Hindi was held in a permanent capacity by one Smt. Anandani Srivastava. She was promoted as an ad-hoc Principal on 17. 1. 1995 and functioned in that capacity till she retired on 30. 6. 2006. Conse quently, upon the promotion of Smt. Anandani Srivastava as an ad-hoc Principal, a short-term vacancy came into existence on the post of Lecturer in Hindi. The petitioner, being the senior most Assistant Teacher in L. T. Grade and possessing the requisite qualifications for promotion as a lecturer in Hindi was accordingly promoted as an ad-hoc Lecturer on 17. 1. 1995. The papers were forwarded by the Committee of Management to the District Inspector of Schools, who by an order dated 27. 9. 2000 accorded approval to the ad-hoc promotion of the petitioner as a Lecturer in Hindi with effect from the date of the expiry of 60 days from the date of the occurrence of the vacancy. Pursuant to the aforesaid order of the Inspector dated 27. 9. 2000, the petitioner alleged that she was paid the regular salary of a lecturer w. e. f. 17. 1. 1996 and that the arrears were also paid to her.
(2.) ON 30. 6. 2006, the post of Lecturer in Hindi became vacant in a substantive capacity on account of the retirement of Anandani Srivastava. According to the petitioner, six posts were required to be filled up by way of promotion under the 50% quota for promotion. The petitioner, being the senior most Assistant Teacher in L. T Grade and working as an ad-hoc Lecturer in Hindi since January 1995 made a representation for promotion on the said post. Since nothing was done, the petitioner filed writ petition No. 43839 of 2006 which was disposed of by a judgment dated 23. 8. 2006 which was subsequently modified by an order dated 11. 9. 2006 wherein, the Court directed the District Inspector of Schools to con sider as to whether the vacancy was required to be filled up by way of promotion and, in the event, the post was required to be filled up by way of promotion, the Inspector was required to forward the names of all the eligible teachers working in L. T. Grade to the Regional Level Committee, for necessary approval. The Court further directed the Committee to decide the matter, and in the interim period, the Court permitted the petitioner to function as an ad-hoc lecturer in Hindi. The Deputy Director of Education, by the impugned order, directed Smt. Saroj Bala, the respondent No. 6, to be appointed as a Lecturer in Hindi w. e. f. the date of the occurrence of the vacancy in the substantive capacity in Hindi. The petitioner, being aggrieved by the aforesaid decision, has filed the present writ petition. Heard Sri Ashok Khare, the learned senior Counsel assisted by the Sri Sunil Kumar Srivastava for the petitioner and Sri V. K. Singh, the learned Counsel for respondent No. 6 and the learned Standing Counsel for the remaining respon dents. Sri Ashok Khare, the learned senior Counsel submitted that the respon dent No. 6 has been promoted treating the post of Lecturer in Hindi as a vacancy reserved for the Scheduled Caste candidates which was not permissible in law. The learned Counsel submitted that the said post could not be reserved to be filled up by a Scheduled Caste candidate since it was an isolated post in which, the reservation policy could not apply. The learned Counsel, in support of his submissions placed reliance on a decision of the Supreme Court in Dr. Chakradhar Paswan v. Sfate of Bihar and others, 1988 (2)SCC 214 and in Post Graduate Institution of Medical Education and Research, Chandigarh v. Faculty Association and others, 1998 (4) SCC 1. Further, Smt. Saroj Bala did not possess the requi site five years of length of service, after having acquired the requisite qualifica tions, as contemplated under Rule 14 of the U. P. Secondary Education Services Selection Board Rules, 1998 and therefore, could not be promoted. In support of his submissions, the learned Counsel for the petitioner placed reliance, upon a decision of this Court in Smt. Usha Goe/v. State of U. P. and others, 2004 (3) ESC 1887.
(3.) IN Dr. Chakradhar Paswan v. stste of U. P. and others, 1988 (2) SCC 214, the question which fell for determination before the Supreme Court was whether three posts of Deputy Directors carrying the same pay scale constitute one cadre or whether the three posts are isolated posts on which the reservation policy could not apply. The Supreme Court held that the three posts of Deputy Directors of Homoeopathy, Unani and Ayurvedic are distinguishable and separate as they pertain to different disciplines and each one was an isolated post by itself, even though, the said posts were in the same cadre. The Supreme Court further held that there could be no grouping of isolated posts even if they carried the same pay scale. The Supreme Court, therefore, found that the reservation policy would not apply to the said post. The aforesaid decision was again affirmed by the Supreme Court in Post Graduate INstitute of Medical Education and Research, Chandigarh v. Faculty Association and others, 1998 (4) SCC 1, wherein the Con stitution Bench of the Supreme Court held as follows : "in a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such a single post in the cadre will be kept reserved exclusively for the members of the back ward classes and in total exclusion of the general members of the public. Such total exclusion of general members of the public and cent per cent reservation for the backward classes is not permissible under the constitu tional framework. Until there is plurality of posts in a cadre, the question of reservation will not arise because any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of a single post cadre will only mean that on some occasions there will be complete reserva tion and the appointment to such posts is kept out of bounds to the members of a large segment of the country who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact, on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society. The view taken in Chakradhar case is approved that there cannot be any reservation in a single post cadre. " In State of U. P. and others v. M. C. Chattopadhyaya and others, 2004 (12) SCC 333, the Supreme Court held as follows : "while, therefore, we are of the considered opinion that there can be a reservation in respect of post of Professor and the provisions of the Reserva tion Act would apply, but the same cannot be applied taking all the Profes sors as a cadre and it has to be made subject wise, as has been earlier construed and held by this Court. We are also of the opinion that there can not be a reservation for an isolated post. We further observe that in deciding the question of reservation the appropriate authority must follow the roster as has been published in exercise of power under Section 3 (5) of the Reserva tion Act and then the roster should be duly complied with in accordance with the principles enunciate a by this Court in Sa'bharwal case. ";