TaxTMI 
TaxTMI 
2009 (4) TMI 1068
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....he issues raised in this bunch of writ petitions. The facts of the leading writ petition are; the petitioners of the writ petition who are four in numbers claim to be duly qualified for appointment on the post of Lecturer in Graduate/Post Graduate Colleges in the State of U.P., have challenged the advertisement No. 37 dated 9.7.2003 published on 16.7.2003 and have also prayed for quashing the Government orders dated 3.7.2003 and 17.4.2003. By advertisement No. 37, the U.P. Higher Education Service Commission has advertised 838 posts of Lecturers in different subjects in various Post Graduates/Graduate Colleges in the State of U.P. by special recruitment to fill up the carry forward and backlog vacancies of reserved categories candidates. All the posts in different subjects have been shown to be reserved for Scheduled Castes, Schedule Tribes and Other Backward Classes. The advertisement mentions number of vacancies in different subjects. The applications have been called separately for different subjects. The advertisement further mentions that guidelines and list of the colleges shall be made available alongwith the application form. The Government order dated 3.7.2002 was issued f....
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....i.e., 1.7.2003 to 30.6.2004 in accordance with the Scheme of Reservation as provided in U.P. Act No. 4 of 1994 ; (v) issue a writ, order or direction in the nature of mandamus commanding the respondents not to treat the vacancies that have occurred in the year preceding the year of recruitment as reserved posts. 4. This Court on 15.7.2005, passed an order directing the standing counsel to produce the record and also to file counter-affidavit giving break up of the vacancies and how these vacancies have been clubbed. Again on 18.7.2005, this Court directed the Secretary, Higher Education U.P. to file his personal affidavit, disclosing all material facts and the manner in which the State proposes to implement the Reservation Act qua the posts of Lecturers in recognized and aided degree colleges. This Court directed that affidavit must also disclose that as to how post of Lecturers in a particular subject available in all the recognized and aided degree colleges of the State could be taken as a unit for the purposes of working out the percentage of reservation provided for reserved categories. 5. A detailed counter-affidavit after the order of this Court dated 15.7.2007....
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....d Class, Scheduled Castes, Schedule Tribes against different subjects. In Writ Petition No. 55910 of 2008, again a prayer has been made for quashing the advertisement No. 41 dated 7.2.2007. Writ Petition No. 6162 of 2006 is a writ petition filed by a candidate belonging to reserved category, who has stated that interview letter dated 10.7.2005 has been issued in pursuance of his application against advertisement No. 37. The petitioner has prayed for a writ of mandamus, commanding the respondents to declare the result of subject Geography pursuant to advertisement dated 9.7.2003. The Writ Petition No. 5632 of 2007 is again a writ petition by a candidate belonging to Other Backward Class who has appeared in the interview in pursuance of his application against advertisement No. 37. A mandamus has been sought for declaring the result of selection in pursuance of advertisement No. 37. Writ Petition No. 15963 of 2008 is again a writ petition filed by a candidate belonging to reserved category, who has appeared in the interview in pursuance of the advertisement No. 37 against the subject history. The petitioner has prayed for a mandamus directing the respondents to declare the result of ....
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....roster. There is no common cadre of Lecturers in different colleges. The posts are sanctioned by the Director of Higher Education subjectwise, separately for each institution. There is no common cadre of Lecturer throughout the State. 8. Learned Additional Advocate General, Sri Jaideep Mathur refuting the submission of learned Counsel for the petitioners submitted that U.P. Higher Education Service Commission Act, 1980 after its amendment now permits consolidation of vacancies of all the Lecturers in different colleges thus, after the amendment in Section 12 (3) consolidated vacancies have to be treated as one unit for applying the reservation. Before 1992 Amendment in 1980 Act, college was a unit but situation has changed subsequent to the amendment made in the year 1992 in the 1980 Act. The college is to now send the intimation of vacancies to the Director of Higher Education, who has been permitted to consolidate the vacancies. Sections 12 and 13 of the Act, if read together make it clear that reservation is to apply on consolidated vacancies. It is submitted that by virtue of Section 2 (c) (iv) of 1994 Act, the post of Lecturers in different colleges are covered by definitio....
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....ave perused the record. From the pleadings of both the parties, the following issues arise for consideration in this writ petition which are necessary to be decided for effectively deciding all the writ petitions. (i) Whether 467 vacancies, which were available because of retirement, resignation and death upto 30.6.2003, could have been included and reserved for Scheduled Castes, Schedule Tribes, Other Backward Classes only alongwith 371 carry forward vacancies in advertisement No. 37 of 2003? (ii) Whether 467 vacancies were rightly reserved only for Scheduled Castes, Schedule Tribes, Other Backward Classes without they having been earlier advertised or offered to General Category candidates? (iii) What is a unit for applying the Rules of Reservation according to 1994 Act and the roster framed thereunder? (iv) Whether the reservation is to be applied by consolidating all the vacancies of the Lecturers in different degree colleges / postgraduate colleges? (v) Whether in case, each college is treated to be a separate unit, the reservation is to be applied by clubbing all the sanctioned posts of Lecturers in a college or the reservation and....
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....within the time allowed aforesaid or the records are not produced then Secretary, U.P. Higher, Education Commission and the Director Higher Education shall appear in person before this Court on 18.7.2005 and show cause as to why they neither filing the counter-affidavit nor producing the records. List/put up on 18.7.2005. 14. In the counter-affidavit dated 17.10.2005, the details pertaining to 838 vacancies have been mentioned. It is the case of the respondents that 838 vacancies which have been advertised include following: (a) 371 carry forward vacancies of advertisement No. 29 which could not be filled up because of non-availability of suitable candidate. (b) The vacancies available because of retirement, resignation and death upto 30.6.2003. 15. Paragraph 14 of the counter-affidavit, which in categorical terms put forward the stand of the State respondents pertaining to vacancies is to the following effect: 14. That after issuance of U.P. Public Service (Reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes) (Amendment) Ordinances on 6.6.2002 which was incorporated into the Reservation Act, 1994 on 31.8.2002. The ....
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.... next aspect of this question is whether a year should be taken as the unit or the total strength of the cadre, for the purpose of applying the 50% rule. Balaji AIR 1963 SC 649, does not deal with this aspect but Devadasan AIR 1964 SC 179, (majority opinion) does. Mudholkar, J. speaking for the majority says: We would like to emphasise that the guarantee contained in Article 16(1) is for ensuring equality of opportunity for all citizens relating to employment, and to appointments to any office under the State. This means that on every occasion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen who is seeking employment or appointment to an office under the State is entitled to be afforded an opportunity for seeking such employment or appointment whenever it is intended to be filled. In order to effectuate the guarantee each year of recruitment will have to be considered by itself and the reservation for backward communities should not be so excessive as to create a monopoly or to disturb unduly the legitimate claims of other communities. On the other hand is the appr....
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....tion was as to whether, if carry forward vacancies are also added, they should also satisfy the 50% rule. The Apex Court held that the same position of 50% rule would apply in the case of carry forward rule as well. 18. After the judgment of the Supreme Court, 1994 Act was enacted in the year 1994. Section 3 (4) of the 1994 Act provided that vacancies reserved if remains unfilled even after special recruitment, it may be carried over to the next year 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 per cent of the total vacancies. 1994 Act was amended by U.P. Act No. 1 of 2002 by which Sub-section (2) was substituted in following manner: (2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under Sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is fille....
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..... Thus, unless steps are not taken under Sub-section (1) of Section 3 for recruitment, Sub-section (2) shall have no application. The backlog vacancies are thus, those vacancies which were earlier advertised for filling it but could not be filled up. The question fell for consideration before a Division Bench in context of 1994 Act in the case of Dr. Shashi Kant Rai and Ors. v. State of U.P. and Ors. MANU/UP/0434/1998 : 1998 (3) AWC 1821. In Shashi Kant Rai's case two advertisements were issued, one advertisement No. 3 of 1996 inviting applications for 47 posts of Medical Officers (Ayurvedic) out of which 42 posts were reserved for Scheduled Castes and 5 posts for Scheduled Tribes. Another advertisement was issued being Advertisement No. 1 of 1997, inviting applications for 433 posts of Medical Officers (Ayurvedic) out of which 389 posts were reserved for Scheduled Castes and 44 for Scheduled Tribes. Both the aforesaid advertisements were challenged by the candidates belonging to General Category. The Division Bench of this Court held that advertisement are bad in law, which advertisement provided for 100% reservation. The advertisement offend the provisions of 1994 Act and als....
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....t. It is true that it was open for the State to advertise 467 vacancies and reserve the post as per 1994 Act. But without taking steps for recruitment for filling the 467 posts which recruitment could have also given opportunity to the candidates belonging to General Category to participate, reserving all 467 vacancies for reserved categories candidates is impermissible. The State has done exactly what was disapproved by the Apex Court in Indira Sawhney's case in paragraph 814 as quoted above. If the State is permitted to fill up all the vacancies coming into existence by reserved categories candidate, the channel of recruitment for General Category shall stand choked and the candidates of General Category shall have no opportunity to participate in any recruitment although substantive vacancies had arisen in which they have right to participate. The stand taken by the respondents in clubbing 467 vacancies alongwith carried forward vacancies of 371 and reserving all for reserved category candidates violates rights of petitioners under Articles 14 and 16(1) of the Constitution of India. 21. A Full Bench of Karnataka High Court in the case of Dr. Rajkumar and Ors. v. Gulbarga ....
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....ecruitment of local candidates who belonged to Scheduled Castes, Scheduled Tribes and Backward Tribes alone was violative of Articles 14 and 16(1) of the Constitution. The Division Bench declared the rule invalid. The relevant portion of the judgment reads: 25. Article 16(1) or 16 (4) only authorises the reservation of posts in favour of the Scheduled Castes and Scheduled Tribes consistently with the maintenance of efficiency of administration. The prescription of reasonable rules with the qualification and standard for the employment or the appointment is not prohibited by Article 16(1) or 16(2). But it must be common to all citizens consistent with the doctrine of equality of opportunity. It may be relevant to remember General Manager v. Rangachari MANU/SC/0388/1961 : AIR 1962 SC 36 at 41 "that Article 16 (1) and (2) really gives effect to the equality before law, guaranteed by Article 14 and to the prohibition of discrimination guaranteed by Article 15(1). The three provisions form part of the same constitutional code of guarantees and supplement each other." If different standards are prescribed under the rules for different classes, then it would plainly run counter t....
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.... 467 vacancies were the vacancies which came into existence upto 30.6.2003, could not have been reserved only for the candidates belonging to Other Backward Classes, Scheduled Castes and Schedule Tribes. The above 467 vacancies were never advertised earlier, hence both reserved category candidates and General Category candidates have right to participate. It was, however, open for the State to determine the reserved vacancies out of 467 vacancies and proceed to advertise the same for both general and reserved category candidates in accordance with 1994 Act. Thus, it is held that advertising 467 vacancies were not backlog vacancies and could not have been reserved solely for the Scheduled Castes candidates and inclusion of the said vacancies in the special drive for filling the backlog of Scheduled Castes, Schedule Tribes and Other Backward Classes is impermissible and violates rights under Articles 14 and 16(1) of the Constitution of India. 23. Question Nos. 3, 4 and 5 being inter-related, are being considered together. Before we proceed to examine the respective contentions of the parties on the above questions, it is necessary to have a look over the statutory provisions gover....
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....ate the existing vacancies and the vacancies, likely to be caused during the course of ensuing academic year to the Director at such time and in such manner, as may be prescribed. The Director shall notify to the Commission at such time and in such manner as has been prescribed subjectwise consolidated list of vacancies intimated to him from all colleges. Proviso to Section 12 (4) requires that Commission shall give wide publicity to the vacancies notified to it under Sub-section (3). Second proviso requires a candidate to indicate their order of preference for the various colleges vacancies wherein have been advertised. Section 30 of the Act, provides that provisions of the Act shall have effect notwithstanding anything to the contrary contained in the U.P. State Universities Act, 1973 or the Statutes or Ordinances made thereunder. In exercise of powers under Section 32 of the 1980 Act, the U.P. Higher Education Services Commission Rules, 1981 has been framed. Part III of the Rules provides procedure for recruitment. Rules 7 and 8 of the 1981 Rules, which are relevant are quoted herein below: 7. Intimation of vacancies (Section 32).-The management of the college shall so ....
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....ssion is satisfied that there are sufficient reasons for doing so, it may with the approval of the Government, relax or modify the time schedule in respect of any year generally or in respect of any particular college. (3) Where the Management has failed to notify the vacancy or the vacancies by the specified date or in the manner prescribed, the Commission may require the Director to notify the vacancy and the vacancy so notified shall be deemed to be notified by the Management. 5. Notification of vacancies submission of application and indication of preference.-The Commission shall advertise the vacancies in the three issues of at least three newspapers. The Commission shall send a copy of the advertisement to the Director and may, if it considers proper, also send a copy thereof to the District Inspector of Schools and to the Colleges. Such advertisement shall, inter alia, indicate the total number of vacancies as also the number of vacancies in women's colleges and other colleges separately, the names of the college (s) and where they are situate and shall require the candidates to apply in prescribed form and to give if he so desires, the choice of not mo....
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....5, with the permission of the Vice-Chancellor concerned; or (b) to a post created, after March 31, 1975 with the permission of the Director of Education (Higher Education). 29. There is no dispute that post of Lecturers have been created and sanctioned as per provisions of 1973 Act and definition of 'public services and posts' in the 1994 Act is applicable on the post of Lecturers in Degree College/Post Graduate Colleges. Section 3 (1) of 1994 Act provides for percentage of reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens. Section 3 as amended upto date quoted herein below: 3. (1) In Public services and posts, there shall be reserved at the stage of 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 persons belonging to Scheduled Castes, Schedule 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 Other Backward Twenty-seven per cent; Classes of citizens ....
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.... list of vacancies but the rules and proforma mentioned in the Rules and Regulations still contain the requirement of management to intimate the vacancies to the Commission. The provisions of the Act having been amended requiring the college to intimate the existing vacancies and vacancies likely to cause during the ensuing academic year to the Director, sending the said intimation to the Director is a mandatory requirement and the proforma for sending the intimation has to be accordingly amended to make the Rules and Regulations workable. It is also to be noticed that with regard to intimation of reserved category vacancies to the Director and Commission, there is no specific provision in 1980 Act, Rules and Regulations framed thereunder but 1994 Act, being applicable, the requirement of 1994 Act, has to be fulfilled and all necessary and consequential actions have to be taken by the authorities entrusted to carry on recruitment in accordance with the objective and purpose of 1994 Act. As quoted above, column No. 7 of the Form of Appendix to the U.P. Higher Education Services Commission Rules, 1981 provide a column for any other requirement or conditions not covered by any other c....
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....stand of the State which is quoted herein below: 11. That it is pertinent to mention that from the perusal of Section 12 (3) of the U.P. Higher Education Services Commission Act, 1980 it is clear that for applying rules of reservation neither a college nor a subject is a unit but the entire consolidated vacancies intimated from all colleges of the State in all subjects is a unit. In order to work out the number of reserved vacancies for different categories the subjectwise vacancies (in Hindi alphabetical order of the subjects) are placed in hundred point roster one by one in continuation on entire consolidated vacancies. The method can be explained through the following example: Example.-Total pooled vacancies subjectwise: Arthashastra (Economics) - 37 Angraezi (English) - 39 Urdu- 08 Hindi- 15 Ganit (Maths) - 20 Rasayan (Chemistry) - 16 Bhugol (Geography) - 17 Consolidated vacancies- 152 Now the roster has to be applied on entire 152 vacancies. In Hindi alphabetical order the aforesaid subjects shall be put in the following order: 1. Angarezi (English) - 39 2. Arthashastra (Economics) - 3....
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....) UPLBEC 2376. The number of posts of Principal of Secondary Institutions . were advertised by U.P. Secondary Education Services Selection Board for recruitment. One of the submissions was that the post of Principals in different institutions have to be clubbed together and rule of reservation are to be applied and posts have to be reserved for reserved category candidates. The Apex Court held that post of Principals in different institutions are not required to be clubbed for the purpose of reservation. Following was observed in paragraph 28: 28. Having examined the issue in the light of 1994 Act, Section 10 of the Principal Act and the settled position in law, we are of the view that the stand of the respondents is not well founded. Under Section 10 of the Principal Act, the Management is required to intimate the number of vacancies to be filled by way of selection by direct recruitment. While doing so, the Management is also required to intimate the number of vacancies to be reserved for the candidates belonging to Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens in accordance with the 1994 Act. However, Section 10 expressly excludes the post of ....
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.... of reservation, which was not approved by this Court as well as by the Apex Court. It is relevant for deciding the present case to note the ratio laid down in the following cases. 35. In the case of Dr. Suresh Chandra Verma and Ors. v. Chancellor, Nagpur University and Ors. MANU/SC/0351/1990 : AIR 1990 SC 2023, the advertisement issued by the University for filling the post of Professors, Readers and Lecturers came for consideration. The University issued an advertisement inviting applications for total number of 77 posts which included 13 posts of Professors, 29 posts of Readers and 35 posts of Lecturers in different subjects. The advertisement mentioned the number of posts to be reserved categorywise but not subjectwise. For example against the 13 posts of Professors, it was mentioned that three posts for Scheduled Castes, 2 posts for Schedule Tribes shall be reserved. Similarly against 35 posts of Lecturers, it was mentioned that 7 posts for Scheduled Castes and 5 posts for Schedule Tribes shall be reserved. The said notice was challenged in the High Court. One of the questions before the High Court as to whether the reservation ought to have been subject-wise in the employm....
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....of U.P. directing reservation for post of Professors, Readers and Lecturers taking the University as one unit. The reservation was applied by the University by clubbing all the posts of Lecturers, Readers and Professors respectively. The Division Bench relying on the judgment of Apex Court in the case of Dr. Suresh Chandra Verma and Ors. v. Chancellor, Nagpur University and Ors. (supra) held that rules of reservation has to be applied subjectwise and all the posts of teachers cannot be clubbed together categorywise for applying the reservation. Following was laid down in paragraph 8: 8. ...When the posts are created subjectwise and the appointment of the teachers are also made subjectwise and the teachers of one department cannot be treated as teachers of the other department, all the posts of the teachers of the University cannot be clubbed together categorywise for applying the reservation. Each department of teaching is a separate unit. Therefore, reservation has to be applied subjectwise. This will ensure reservation in all categories of teachers in all subjects departments. If the reservation is not applied subjectwise, it will result in violation of Article 16 of the....
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.... discipline, speciality or super-speciality which cannot be reserved for reserved candidates, it should be clubbed roster applied and be made available for the reserved candidates in terms of Section 3 (5) of the Act. Even if there exists any isolated post, rule of rotation by application of roster should be adopted for appointment. For achieving the said object, the Vice-Chancellor, who is responsible authority under Section 4 to enforce the Act, would ensure the single posts in each category are clubbed since admittedly all the posts in each of the categories of Professors, Readers or Lecturers carry the same scale of pay. Therefore, their fusion is constitutional and permissible. The Vice-Chancellor should apply the rule of rotation and the roster as envisaged under Sub-section (5) of Section 3. The advertisements are required to be issued so that the reserved and the general candidates would apply for consideration of their claims for recruitment in accordance therewith. This interpretation would subserve and elongate constitutional objective " and public policy of socioeconomic justice serving adequacy of representation in a service or posts, grade or cadre as mandated and env....
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....atch of writ petitions which were disposed of by the judgment in Ram Niwas Pandey (Dr.) v. State of U.P. In the aforesaid judgment in paragraph 29, the Division Bench of the Allahabad High Court has held that Departments cannot be clubbed together and treated as one cadre for the purpose of applying reservation. The aforesaid observation has been construed in the impugned judgment to be a total prohibition for applying the reservation policy to the post of Professor. Further, the Court in the impugned judgment is of the conclusion that because of a different selection mechanism for the post of Professor, principle of reservation will have no application. This judgment of the Allahabad High Court in Ram Niwas Pandey (Dr.) v. State of U.P., was assailed before this Court. But this Court being of the opinion that no exception can be taken to the judgment, did not entertain the special leave petition. The very advertisement of the University which had been issued in the year 1995 and was the subject-matter of challenge before the Allahabad High Court in the impugned judgment, had also come up for consideration before this Court in State of U.P. v. Dr. Dina Nath Shukla. A Bench of two l....
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....f power under Section 3 (5) of the Reservation Act and then the roster should be duly complied with in accordance with the principles enunciated by this Court in Sabharwal case. 40. Thus, the ratio of the Apex Court in the cases of Suresh Chandra Verma and Dr. Dina Nath Shukla (supra) is to the effect that post of one category, i.e., post of Professors, Readers or Lecturers cannot be clubbed together for applying the rules of reservation and the Rules of reservation has to be applied subjectwise. In the present case, the stand of the respondents as taken in paragraphs 11 and 12 of the counter-affidavit of the Principal Secretary of the Higher Education, quoted above, is that reservation has been applied clubbing all the posts of Lecturers of different colleges in the State of U.P. The stand taken by the respondents that roster is applied on consolidated vacancies on subject-wise is not in accord with the ratio laid down by the Apex Court in the aforesaid cases. In paragraph 11 of the said affidavit, the manner of applicability of 100 points roster has also explained. It has been stated in paragraph 11 that on consolidated subjectwise vacancies, the roster is applied in continuat....
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....hey are carried on the same scale. The instructions issued by the Government of India from time to time relating to reservations of posts and appointments for the Scheduled Castes and Scheduled Tribes are contained in the Brochure on Reservation for Scheduled Castes and Scheduled Tribes in Services. Chapter II Part I gives the percentage of reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. These instructions have been issued to carry out the mandate of Article 16(4) consistent with the equality clause under Article 16(1) and 16(2) and the requirements of Article 335, namely, the maintenance of efficiency of administration. Para 2.4 provides that the reservations will be applied to each grade or post separately but isolated posts will be grouped as provided in Chapter VI. Paragraph 6.1 of Chapter VI which is relevant for our purposes, states that in the case where the posts are filled by direct recruitment, isolated individual posts and small cadres may be grouped with posts in the same class for purpose of reservation, taking into account the status, sal....
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....candidate thereafter filed a writ petition before the High Court challenging the advertisement issued by the State Public Service Commission and also the consequent order of appointment. The High Court allowed the petition and quashed the impugned advertisement and the appointment order. Such decision of the High Court was assailed before this Court in Dr. Chakradhar Paswan's case MANU/SC/0143/1988. The appeal was dismissed by this Court by holding that in service jurisprudence, the term 'cadre' has a definite legal connotation. It is not synonymous with 'service'. It is open to the Government to constitute as many cadres in any particular service as it may choose according to the administrative convenience and expediency and it cannot be said that the establishment of the Directorate constituted the formation of a joint cadre of the Director and the Deputy Directors because the posts are not interchangeable and the incumbents do not perform the same duties or carry the same responsibilities or draw the same pay. The posts of the Director and those of the Deputy Directors constitute different cadres of the service. The first vacancy in the cadre of the Deputy Di....
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....arried forward for the benefit of Scheduled Castes and Scheduled Tribes until the close of the financial year 1968-69. It was pointed out in Chakradhar's case that the decision in Arati Ray Choudhury's case turned on the carry-forward rule and such decision was clearly distinguishable and the same does not support reservation in a single cadre post. 42. The recent judgment of this Court dated 24.7.2008 in Writ Petition No. 53197 of 2006, Dr. Durga Prasad Yadav and Ors. v. State of U.P. and Ors. has again laid down that the vacancies of Lecturers and Readers cannot be clubbed and the advertisement has to be subject-wise. In the above case, advertisement was issued by Deen Dayal Upadhyay Gorakhpur University inviting applications for the post of Readers and Lecturers in various subjects in the University. Following was laid down by the Division Bench: With these pronouncement of Supreme Court the law in respect of the applicability of rules of reservation to the teaching posts in University is fairly well-settled. The State Government, however, by an apparent misreading of the judgment in M. C. Chattopadhyaya's case issued a Government order dated 1st August, ....
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....subjectwise. Sri Rajeev Misra submits that what is not being permitted in the university regarding applicability of the reservation is sought to be applied in the post graduate colleges and degree colleges affiliated to the University. It is submitted that all the posts are created subjectwise by Director of Education Higher in different post graduate and degree colleges which carry different qualifications as laid down under the provisions of U.P. State Universities Act, 1973. Sri Jaideep Mathur, learned Additional Advocate General submits that firstly all the posts in different colleges have to be clubbed together and roster has to be applied thereafter as per the method stated in the affidavit of the Principal Secretary of the Higher Education quoted above and in alternative in case, each college is treated to be a separate unit, the post of all the Lecturers have to be clubbed together and reservation has to be applied thereafter. Sri P. S. Baghel, learned Counsel for the petitioners has also placed reliance on a Government order dated 1.8.2003 by which Government order, the State Government has laid down methodology for applying the roster in different posts of lecturers in a ....
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....e of applying reservation and roster and the reservation and roster in the post of Lecturers have to be applied subjectwise. Thus, each subject of study has been treated to be a unit for applying the rules of reservation. As noticed above, the petitioners have advocated for applying the same principle regarding reservation, which has been accepted in a University, whereas learned Advocate General appearing for the respondents have made two alternative submissions firstly, different posts in different colleges in each subject are to be clubbed together and thereafter reservation has to be applied in the manner as mentioned in the affidavit of Principal Secretary, Higher Education, quoted above and in alternative if a college is treated to be a unit, all the posts of Lecturers in a college have to be clubbed together and reservation has to be applied as is being applied in the Secondary institutions governed by the provisions of U.P. Secondary Education Services Selection Board Act, 1982. For coming to a correct conclusion, it has to be first found out as to whether concept of Faculty, department and subject is also present in Degree Colleges or post graduate colleges as it exists in....
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.... most teacher who shall be a Principal or senior most teacher of a Department for each of the subjects comprised in the Faculty and recognised upto first degree standard only. (iv) Five senior most teachers in the Faculty other than Principals and teachers mentioned in Clauses (ii) and (iii) above provided that no two such teachers shall profess the same subject and belong to the same college, where there is more than one college recognised for the teaching of the subject. The teachers so passed over shall not lose their turn in rotation next time. (v) Seven persons possessing expert knowledge of the subjects comprised in the Faculty or subjects allied to them, not in the service of the University or any of its colleges, to be nominated by the Vice-Chancellor from the following categories: (a) Professors in Universities ; (b) Present or retired Principals of Postgraduate colleges ; (c) Directors of Research Institutes or in the case of Medical Faculty, the Civil Surgeon of Agra ; Provided that at least four of the above persons shall belong to category (a) and (c). (2) The teachers under items (ii) and (iii) and (iv) of....
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....in the Statute 7.02 is reference of senior-most teacher of a department for each of the subjects comprised in the Faculty. Thus, the senior-most teachers of departments in degree colleges/post graduate college are part and parcel of the Faculty Board of each of the Faculty. Thus, the Board of each Faculty is a unified body headed by Dean of Faculty and comprises of the Professors of the University and members and senior-most teachers of the respective departments of degree colleges or post graduate colleges. The Board of Faculty have various responsibilities and duties and the Board of Faculties constituted under the State Universities Act and as per the Statute of the University guides the teaching course curriculum both for University and colleges. The above provisions thus, indicate that in the degree college/post graduate college also the concept of department and subjects are contemplated. Thus, the concept of different subjects, teachers appointed in different subjects and different departments are very much present in the Statute qua the degree college and post graduate college. 50. There are other provisions under the First Statutes which clearly contemplate different fa....
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....ew Board.-(1) Separate Interview Board shall be constituted for the posts of Principals in Post-Graduate Colleges, Principals in Degree Colleges and for the post of other teachers in each subject. 54. Thus, selection is also contemplated subjectwise in regard to teachers of degree colleges/post graduate colleges. Learned Additional Advocate General has also referred to rules of reservation as applied in the Secondary schools governed by the provisions of U.P. Secondary Education Services Selection Board Act, 1982. He contends that while applying the rules of reservation in different subjects of Lecturers in an intermediate college, all subjects are clubbed together and thereafter rules of reservation are applied. As noted, the provisions of U.P. Higher Education Services Commission Act, 1980 and rules and regulations framed thereunder do not refer to 1994 Act in selection of Lecturers of degree/post graduate college but the rules of reservation have been made applicable by virtue of 1994 Act itself. In the intermediate colleges governed by U.P. Act No. 5 of 1982, there are specific statutory provisions which make the rules of reservation applicable. The 1982 Act and 1998 Rules s....
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.... thus the manner of applicability of reservation in an intermediate college is not relevant for applying the same in a degree college/post graduate college affiliated to a University. When the question arises to follow the pattern of applicability of reservation, we have no hesitation that the partem which is applicable for applying the rules of reservation in the post of Lecturers in a University have to be accepted as compared to those which are applied on the post of Lecturers in intermediate colleges. As noted above, the concept of faculties, departments and subjects, the rules of seniority as noted above in the U.P. State Universities Act, 1973 and the Statutes framed thereunder are applied in some what similar manner regarding the degree college/post graduate colleges which are applied on the teachers of the University. 56. The submission, which has been much pressed by respondents is that since all the posts of Lecturers in degree colleges/post graduate colleges carry the same scale of pay and are under one management with more or less same duties and responsibilities all the posts fall in one cadre, there cannot be different cadres for different subjects. As noted above,....
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....ses to come up in the main stream of the society and this is an affirmative action by the State to provide for equal opportunity for backward classes. The 1994 Act does not provide for reserving all the posts of Lecturers. Posts shall be reserved when it falls within the requisite percentage as provided under Act 1994. Apex Court while applying reservation in the posts of lecturers in a University has laid down applying the 1994 Act "subjectwise". Can it be said that 1994 Act, has been frustrated in all the universities of the State? The answer has to be No since the Apex Court has not laid down that 1994 Act shall not apply to the posts of Lecturers in a University but has only laid down the manner of applicability. Similarly 1994 Act is fully applicable to the posts of Lecturers in a college but its manner of applicability is same as held to be applicable in a University. 58. A person, who acquires a qualification for appointment in one particular subject has right to participate in the selection only against the said subject. Not applying the reservation subject-wise, will lead to uncertainty and violation of the rights under Articles 14 and 16 of the Constitution of India. T....
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....nes for which there were several Lecturers. It was contended that the college had to maintain the Roster for the purpose of making appointments after taking into consideration the entire cadre of Lecturers, irrespective of subjects. It was also contended that in the college in question there were six posts of Lecturers and hence, post of Lecturer in History could not be as a single post. 60. Learned single Judge upheld the claim of the respondents and held that reservation policy would not apply to the post of Lecturers. The matter was taken ¦ up in Division Bench. The Division Bench confirmed the view of the learned single Judge. State took up the matter in Apex Court. The submissions of the learned Counsel for the State of Karnataka as noted by the Apex Court in paragraph Nos. 9, 10, 11 and 16 are quoted below: 9. Mr. Hegde urged that the posts in the different were meant to be filled by Lecturers who formed a cadre and each discipline which consisted of a single post of Lecturer did not constitute a separate cadre in respect of the said discipline as otherwise without applying the principle of roster rotation, the said single post would always have to be fille....
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....se, in Suresh Chandra v. J. B. Agarwal and Post Graduate Institute of Medical Education and Research v. K. L. Narsimhan, in which reservation by rotation even in respect of a single post had been approved, was subsequently, overruled in the Constitution Bench decision in Post Graduate Institute of Medical Education and Research v. Faculty Assn. And it was held that in no case could reservation be made applicable in respect of a single post. The Constitution Bench approved the views expressed in Chakradhar Paswan (Dr.) case following those expressed by the earlier Constitution Bench in Arati Ray Choudhury case. In view of the above, the only question which we are called upon to consider is whether the High Court was right in treating the post of Lecturer in History in respondent 2 college as a single isolated post forming a separate cadre in itself and no part of the cadre of Lecturers comprising all the different disciplines taught in the college. 22. While there can be no difference of opinion that the expression "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplin....
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.... the submission that all the post in one college in different subjects have to be clubbed together. The question of applicability of reservation in different subjects presupposes that all the posts cannot be clubbed together. The above judgment also thus, clearly supports the view that in a degree college/post graduate college, the reservation has to be applied subjectwise. If in a particular subject, there are plurality of posts, reservation and roster shall come into play. But all the post of Lecturers in one college cannot be clubbed together for applying the reservation and roster. As observed above neither 1980 Act nor 1973 Act give any indication how the 1994 Act is to be applied with regard to selection and appointment of teachers. However, there is some indication available in the 1973 Act and action taken thereunder with regard to applicability of reservation for Scheduled Castes, Schedule Tribes and Other Backward Classes regarding admission in various course of study in the University. Section 28 (5) provides for reservation of seats for admissions in any course of study in University, Institute, constituent college, affiliated college or associated college. Section 28 (....
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....rd Classes) Order, 1994 in exercise of power under Section 28 (5) of the 1973 Act. Order II of the said order provides for reserving different percentage of seats in any course of study in an university, institute, constituent colleges, affiliated colleges or associated colleges. Order II is quoted as follows: 2. (1) Subject to the provisions of Sub-section (5) of Section 28 of the Uttar Pradesh State Universities Act, 1973, with effect from the academic Session of 1994-95, following percentage of seats in any course of study in a University, Institute, Constituent College, Affiliated College or Associated College shall be reserved for admission for the candidates belonging to the Scheduled Castes, Schedule Tribes and Other Backward Classes of citizens, namely ; Scheduled Castes Twenty-one per cent Schedule Tribes Two per cent Other Backward Classes of citizens Twenty Seven per cent Provided that where any University has provided for reservation in admissions in favour of any other category of candidates than those referred to above, the candidate selected for admission on the basis of such reservation shall be placed in the appropriate category ....
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....in degree college/post graduate college, we need not further consider the submission based on the Government order dated 1.8.2003. Thus, in our considered opinion the reservation and roster in a college which is treated to be a unit for applicability of reservation and roster has to be applied subjectwise. The Government order dated 1.8.2003 also came for consideration before Division Bench of this Court in the case of Dr. Durga Prasad Yadav and Ors. v. State of U.P. and Ors. (supra). The Division Bench of our Court found the Government order dated 1.8.2003 directly in conflict with the pronouncement of the Apex Court. Following was held by the Division Bench in the aforesaid case: After hearing learned Counsel for the petitioners and the learned Counsel appearing for the State and the University, we find that Government order dated 1st August, 2003 and consequent advertisement, in respect of post of Readers and Lecturers is in direct conflict with the judgment in Dr. Dina Nath Shukla's case, which was departed only with regard to single post of Professor in M. C. Chattopadhyaya's case.... 67. As noticed above, the Lecturer in different subjects required to poss....
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...., which is having sanctioned strength of 26. In subject of Urdu, there are only three sanctioned vacancies. Further, in the subject of physical education there are three vacancies, one teacher was working from General Category candidate and two posts are shown to be vacant. For applying the roster for finding out the reserved points, the question necessarily has arisen as to how the 100 points roster issued under Sub-section (3) of Section 5 shall be applied, when there is only three vacancies in a cadre. It has thus, become necessary to look into this issue and to find out as to how roster shall be applied, while determining the reserved points in subjects where the cadre strength is one, two, three or more. The next college mentioned in Annexure-3 is N. A. S. College, Meerut. The first subject is mathematics, which has five sanctioned strength. There is history and sociology which has four sanctioned strength. In Sanskrit, Art there are only three sanctioned posts, in Statistics and Physical Education there are only one sanctioned post. In foregoing discussions, we have already found that when there is only one post in a cadre, the said post cannot be held to be reserved and soli....
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....tage as prescribed under Sub-section (1) of Section 3 as well as 50% ceiling has now been laid down by the Constitution Bench judgment of this Court in Indra Sawhney' case (supra). For illustrating further, if we take an example of two posts cadre. (In Annexure-3 to the counter-affidavit, there are several subjects which have only two sanctioned posts), the details of Deonagari Mahavidyalaya, Meerut mentions at Item No. 1 (five) posts of statistics, which has only two sanctioned posts in Raghunath Girls Inter College, Meerut at Item No. 32, the subject of Geography has only two sanctioned posts. Whether out of two posts, one post can be reserved either for Scheduled Castes or Other Backward Class, is the question to be answered. The notification issued by the State Government in exercise of power under Sub-section (5) of Section 3 provides following roster which is 100 points roster. The first ten points at this stage which are as follows: 1. Scheduled Castes. 2. Unreserved. 3. Other Backward Class. 4. Unreserved. 5. Scheduled Castes.. 6. Unreserved. 7. Other Backward Class. 8. Unreserved. 9. Other....
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....one post is reserved for Scheduled Castes, the reservation is well within 50%. The said contention was rejected by the Bench. Following was laid down in paragraph 56: Learned Advocate General submitted that by issuing the Government order dated 26.6.2002, the first point has been given to Scheduled Castes and second point has been given to the general category and accordingly, even if there are two posts, one post can be reserved for S.C. candidates as it will be within the outer limit of 50% provided by Hon'ble Supreme Court through various pronouncements (supra). The submission of the learned Counsel seems to be misconceived. While reading Sub-section (5) of Section 3, we cannot overlook Sub-section (1) of Section 3. Moreover, Sub-section (5) itself says that the Government shall "for applying the reservation under Sub-section (1) by notified order, issue a roster, "meaning thereby Sub-section (5) has been inserted with reference to Sub-section (1) of Section 3. The aims and object of 1994 Act also starts by reference to post, means the total number of posts available in a cadre and from such available post certain percentage is reserved for Scheduled Castes and Sche....
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....thereby, even while applying roster for S.C., S.T. and O.B.C, the outer limit of 21%, 2% or 27% should be adhered to. (4) The outer limit of 50% provided by Article 16(4B) of the Constitution or by Hon'ble Supreme Court right from M. R. Balaji's case (supra) till date, includes the reservation for all the categories or classes of employees. In case reservation is provided only for one category like in the present case, 21% to S.C. category, then it does not mean that State has right to enhance reservation upto 50% suo motu exceeding the statutory quota provided by the Act and Statute. 50% rider is the outer limit permissible for all categories and in case under the Act or Statutes lesser percentage of reservation has been provided to any class, then that will be the outer limit for the respective classes as in the present case, reservation for S.C. is 21% and it cannot be enhanced to 50%. (5) While exercising power for purpose of reservation keeping in view the law laid down by the Hon'ble Supreme Court in M. Nagraj's case (supra) to find out the backwardness or inadequacy of representation keeping in view the necessity and efficiency provided by A....
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.... 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 best four posts would have been availed 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 Castes, it would be more than 21%. The Apex Court in R. S. Garg v. State of U.P. and Ors. MANU/SC/8239/2006 : 2006 (6) SCC 430 : 2006 (6) AWC 6186 (SC), has held as under: 40. We are not concerned with the reasonableness or otherwise of percentage of reservation. 21% of the posts have been reserved for Schedule Tribes 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. ....
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.... were designated of Deputy Director of Factories (Administration), one as Deputy Director of Factories (Chemical) and one Deputy Director of Factories (Engineering). The post of Assistant Director of Factories was the feeder post. The Government converted the post of Deputy Director Factories (Chemical) to Dy. Director Factories (Administration). The third respondents was promoted as Deputy Director of Factories (Administration) as a reserved category candidate, which promotion was challenged in the Supreme Court. One of the grounds of challenge was that reservation to the post of Scheduled Castes was illegal and unjust by reason thereof percentage of reservation for promotion cannot be raised from 21 to 33%. The contention raised before the Apex Court has been noted in paragraph 6 of the judgment to the following effect: 6. The said writ petition had been dismissed by the impugned Judgment. The contentions raised before the High Court as also before us, on behalf of the appellant are: (i) The 3rd respondent was illegally appointed as Assistant Director of Factories as his services were regularized without referring the matter to the Public Service Commission as w....
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....of the 1994 Act and roster issued under Sub-section (5) of Section 3, the percentage of roster shall prevail. Another judgment, which is relevant in the present context is the judgment of the Supreme Court in the case of State of U.P. and Ors. v. Pawan Kumar Tiwari and Ors. MANU/SC/0002/2005 : (2005) 2 SCC 10 : 2005 (1) AWC 363 (SC). Pawan Kumar Tiwari, the respondent in the appeal had appeared in the selection for the post of Civil Judge (Junior Division) in U.P. Judicial Service. In the General Category candidates his merit position was 47. There were only 93 posts advertised. The respondent was not selected and 46 General Category candidates were selected. Rest 47 seats were distributed amongst Scheduled Castes 20 posts, Other Backward Class 26 posts, Schedule Tribes 1 post. The writ petition was filed by Pawan Kumar Tiwari, which was allowed, against which State of U.P. filed an appeal. The Apex Court affirmed the judgment of the High Court and took a view that reservation for Scheduled Castes, Other Backward Classes and Schedule Tribes shall not exceed 50% and since 47 posts were given to the reserved category candidates out of 93, which was more than 50%. Among General Catego....
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....s or Other Backward Classes. Since reserving one vacancy in favour of either Scheduled Castes, Scheduled Tribes or Other Backward Classes, there shall be reservation for that category upto 50%, which is not permissible under Sub-section (1) of Section 3. It can further be contended on behalf of reserved category candidates that even when there are two posts 27% of 2 posts will be .54% which can be rounded of to one. Thus, one post can be reserved for Other Backward Classes even in cadre of two posts. The contention appears to be attractive but on a closer scrutiny, it does not commend us. There cannot be a dispute that principle of rounding off can be applicable with regard to computation of vacancies for reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes. We had occasion to consider the principle of rounding off in another context in the context of percentage of votes in the case of North Central Railway Mens Union, Allahabad v. North Central Railway Employees Sangh MANU/UP/1188/2008 : 2008 (7) ADJ 390. Following was laid down in paragraph 15 of the aforesaid judgment: The principle of rounding off a fraction of a number to a whole number had been ....
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....pto some extent be ignored. The above principle has been applied since a seat or a post cannot be expressed in a fraction because seats and posts are always in whole number. For a competitive examination eligibility and the selection on the basis of merit sometimes depend on one mark. One mark when expressed in percentage may generally come in fraction but the said fraction cannot be ignored nor it can be said that the said fraction is insignificant. 7. Learned Counsel for the appellant placed reliance on a single Judge judgment of this Court in Rajan Seth v. State of U.P. and Ors. MANU/UP/0637/1992 : (1992) 1 UPLBEC 636 : 1992 (2) AWC 1189. The aforesaid case arose out of admission in M.B.B.S. in Medical College, Jhansi. The writ petitioner made an application to the Principal, Medical College, Kanpur seeking his transfer to Medical College, Kanpur. From the facts of the case it appears that 5% vacancies were to be filled up by transfer. Since 5% of 191 seats come to 9.55, for working out the number of seats, the fraction less than .5 has to be ignored and the figure has to be rounded upto make 10 seats. In the facts and circumstances of the aforesaid case this Court held....
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....rved category candidate comes to in fraction of figure, the same can be rounded off but rounding off can be resorted only when reservation is within permissible limit as provided under Section 3(1). 81. A Full Bench of Bombay High Court had occasion to consider the issue of minimum number of posts in application of 50 points roster in the case of New English High School Association, Nagpur and Anr. v. Baldev and Anr. MANU/MH/0925/2006 : 2008 (5) ESC 3110. Reference was made to the Full Bench in the Bombay's case questioning the correctness of a Division Bench laying down that permissible reservation of 24% can be applied only on one post out of four such posts. A 50 point roster was issued in the State of Bombay and the percentage of reservation under relevant rules governing the recruitment on the post of Assistant Teacher was 24% (13% for Scheduled Castes, 7% for Scheduled Tribes and 4% for Denotified Tribes or Notified Tribes). The Full Bench approved the view taken by the Division Bench and has laid down that for giving effect to 24% reservation, there has to be more than three posts in a cadre. Following was laid down in paragraphs 27 and 28: 27. Undoubtedly, t....
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....pex Court needs to be noticed in this context, i.e., in the case of Prabhash Chand Jain v. State of Haryana and Ors. : (1996) 8 SCC 105. In the aforesaid case, State of Haryana has laid down reserved points by a roster by Government order dated 9.2.1979 introducing 100 points roster. Two executive letters were issued by the Chief Secretary of the Social Welfare Department and Finance Commissioner observing that wherever there are two posts, the same are not to be filled in by applying the reservation policy. The Apex Court in that context laid down that unless the State Government has completely given up its policy as enunciated by letter dated 9.2.1979, it was not possible to implement the two letters mentioned above. The above Supreme Court judgment has been noticed by the Full Bench of Bombay High Court and Full Bench has after noticing the facts and ratio laid down that the said decision was not on the point under consideration. It is sufficient to refer to paragraph 25 of the judgment of the Full Bench, which is quoted as follows: 25. In Prabhash Chand Jain's case (supra) the Apex Court had not dealt with the issue about the applicability or roster on consideratio....
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....ntments of the Scheduled Castes and Backward Class candidates by promotion to the said post of Deputy Superintendent, which is a Class III post. According to the roster points introduced, the Scheduled Caste candidates should be appointed at points 4, 8, 14, 18 and so on upto 100 and the Backward Class candidates at points 10, 16, 32 and so on. Between 9.2.1979 and 15.7.1987, candidates all belonging to the General Category were appointed by promotion to the said post in some of the departments ignoring the claims of the Scheduled Caste candidates who ought to have been appointed, as stated above at the relevant roster points. On the other hand, the candidates appointed earlier according to the roster points in some other departments were reverted. It was in the background of those facts, the Apex Court while explaining the decision in R. K. Sabharwal's case held that: The Court has then gone on to explain that the word 'post' means the position to which the person is to be appointed. The vacancy means a non-occupied post or office. The plain meaning of the two expressions make it clear that there must be posts to enable the vacancies to occur. The cad....
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....orward vacancies, i.e., 371 has been correctly determined? 87. We have already held that advertisement No. 37 insofar as it includes 467 vacancies which arose upto 30.6.2003 due to resignation, retirement and death and which vacancies were never advertised, was clearly impermissible and the advertisement insofar as 467 vacancies cannot be sustained. Now the question which has cropped up is as to whether when the advertisement insofar as 467 vacancies have become illegal, whether the selection process which was initiated for 371 carry forward vacancies should be proceeded to its logical end specially when the basis for applying the reservation as claimed by the respondents is also erroneous. The consideration which have weighed with us for permitting the recruitment process for 371 carried forward vacancies to its logical end are two folds. Firstly, it has not been brought to our notice that with regard to 371 carried forward vacancies, there has been no challenge and the said vacancies were advertised for being filled up by Scheduled Castes candidates and remained unfilled. Secondly, advertisement was issued in July, 2003. Number of reserved category candidates have applied and ....
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....cruitment. The advertisement No. 37 in so far as 467 vacancies is concerned is quashed. However, the selection process insofar as 371 carry forward vacancies are concerned should be taken to its logical end. The Government order dated 3.7.2002 Annexure-21 to the writ petition insofar as it directs computation of reservation on the basis of entire cadre strength instead of vacancies, being not in accordance with law is quashed. We having held that the criteria for computation of reservation and the unit for applicability of reservation having been erroneously taken by the respondents, the applicability of reservation requires to be redetermined, while implementing the selection with regard to 371 backlog vacancies. The Writ Petition No. 48149 of 2003, Dr. Vishwajeet Singh and Ors. v. State of U.P. and Ors. is partly allowed with following directions: (i) The advertisement No. 37 dated 9.7.2003 insofar as it advertised 467 vacancies which arose upto 30.6.2003 due to death, resignation or retirement is quashed. However, the advertisement insofar as it advertises 371 carry forward vacancies which remained unfilled is maintained. (ii) The Director, Higher Education sha....