- (1.) HEARD Sri M. M. Sahai for the appellant, Sri Sanjeev Singh for respondent No. 1 and learned Standing Counsel for respondent Nos. 2 and 3.
(2.) THIS intra Court appeal has been preferred against the judgment dated 22. 4. 2004 passed by Hon'ble Single Judge by which it has allowed the writ petition of petitioner-respondent No. 1 (hereinafter referred to as 'respondent No. 1') observing that at the time when recruitment in question was made, the Statute did not provide any reservation in promotion for Scheduled Castes, scheduled tribes and therefore, the appointment of respondent No. 4 treating the vacancy reserved for Scheduled Castes was illegal. Sri Sahai vehemently contended that reservation in promotion in the educational institutions was provided by Government Order dated 12. 7. 1978 and the same has not been superseded by any subsequent statutory provision. Hence, it was rightly provided by the Management and the Hon'ble Single Judge has erred in law in observing otherwise. Having heard rival submissions and perusing the record, we find that there were total seven posts of Lecturers sanctioned in the institution, namely, Zila Panchayat Balika Inter College, Chandauli, District Chandauli (hereinafter referred to as the 'institution') out of which five were already occupied. Out of the five, three were directly recruited and two were promotees. There existed two vacancies and since none of the promotee working in the institution was found a Scheduled Caste, the Management treated one of the vacancy of Lecturer as reserved of Scheduled Castes and promoted respondent No. 1 on the said post, though she was much junior and did not figure in the filed of eligibility otherwise.
(3.) THE question as to whether reservation in promotion is permissible or not came up for consideration before the Apex Court in Indira Sawhney v. Union of India and others, AIR 1997 SC 597 and the Apex Court clearly held that reservation in promotion is permissible under Article 16 (4-A) of the Constitution of India though majority decision at that time deprecated the practice of providing reservation in promotion and said that after the short while, i. e. five years such reservation must come to an end. THEreafter, the Parliament amended the Constitution and inserted Article 16 (4-A) which specifically made it permissible to the authorities concerned to provide reservation in promotion if necessary provisions have been made in this regard. In view of the amendment in the Constitution, if law has been made, namely, either by the Legislature itself or by Subordinate Legislation or even by Executive Orders providing for reservation in promotion for scheduled castes/scheduled tribes, such reservation is permissible in law and it cannot be said that it is unconstitutional. Here, in the case in hand, the Government Order dated 12. 7. 1978 admittedly provided for reservation in promotion in educational institutions and the said Government Order having not been superseded by any subsequent enactment, it continued and therefore, the Hon'ble Single Judge was wrong in holding that the reservation in promotion in educational institutions was not available. However, there is another aspect of the matter which also goes to the root of the case that in any case, the appointment of respondent No. 1 treating the vacancy reserved for scheduled caste could not have been made and therefore, the ultimate conclusion drawn by Hon'ble Single Judge that the writ petition has to be allowed would have to be upheld.;