TaxTMI 
TaxTMI 
2010 (7) TMI 1236
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the said two Division Bench judgments in the case of Vishwajeet Singh (supra) and Smt. Pholpati (supra) indicates that the applicability of the roster can be implemented wherever there are five or more than five posts to be filled up where reservation is being claimed under the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. The said decision clearly lays down : that there has to be existence of more than five posts for the purpose of applying roster otherwise it would violate the law in Indira Sahani's case as reservation will then be in excess of 50%. Having perused the ratio of the two division Bench judgments it appears that the same has not been noticed in the decision in Mahendra Kumar Gond's case. The decision in the case of Dr. Vishwajeet was rendered on 20th April, 2009 whereas decision in the case of Pholpati Devi was rendered prior to that. 10. Both these decisions appear to have escaped the notice of the Court and the applicability of the roster in the situation where there are only three posts available. 11. In this view of the ratio laid down in the two judgments of Dr. Vishwajeet ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... both the Institutions which are governed by the provisions of the 1921 Act and the Regulations framed thereunder. The Institutions where the claim is staked are privately managed and receiving grant-in-aid from State funds-The financial approval and sanction of the post in question and disbursement of salary to the employees is governed by the statutory provisions of Uttar Pradesh High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act No. 24 of 1971. 5. Regulation 2 of Chapter III of the 1921 Act makes a provision through two sources of recruitment to the said cadre, fifty per cent by way of promotion and the rest by direct recruitment. The provision further clarifies that if the fraction is either exactly half or more than half in calculation of the percentage, then the same shall be read as one complete unit, and as in the instant cases where there are three posts, the fraction of 1.5 will be read as two and therefore two posts have to be filled up by way of promotion. 6. In the case of Heera Lal the claim is by way of promotion. Heera Lal being a Class IV employee has set up a challenge to the compassionate appointment of the responden....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gh is pending before the Apex Court. It is also stated that no interim orders have been passed therein so far. Accordingly, we have proceeded to hear the matter noticing the same. 10. We have been assisted by Sri R.C. Dwivedi and Sri Lalji Pandey for the private parties and Sri Jaydeep Mathur learned Additional Advocate General assisted by Sri M.C. Chaturvedi learned Chief Standing Counsel at Allahabad and Sri L.P. Gupta learned Chief Standing Counsel at Lucknow for the State. 11. The main plank of the argument on behalf of those opposing the application of the roster, rests on the ratio of the Division Bench decision in the case of Dr. Vishwajeet Singh (supra), contending that there is no occasion for the applicability of the rule of reservation with the help of any roster for Scheduled Caste candidates, as the percentage of reservation for Scheduled Castes which is 21%, envisages the existence of a minimum of total number of five posts in the cadre strength for calculating and applying the said percentage. It is urged by them that 21% can be calculated only if there are a minimum number of five posts for offering 21% reservation as it is only then that one post can be reserved ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ges and the calculation made therein was in accordance with the rules that were applicable for the purpose of appointment of such Lecturers and therefore, in the absence of any such real conflict no such dispute requires to be resolved. He submits that as a matter of fact it is the rule of per incuriam which can be said to be at best attracted inasmuch as the referring order Indicates that the decision in the cases of Dr. Vishwajeet Singh and Smt. Pholpati Devi escaped the notice of the Court while proceeding to decide the case of Mahendra Kumar Gond. 14. While advancing his submission in respect of question No. 1, Sri Mathur took us through the details of the clauses contained in the Government Order dated 8th March, 1973 and submitted that even where the posts are less than five the rule of reservation for giving benefit of reservation to a Scheduled Caste candidate is available. He therefore submits that the reference be answered accordingly keeping in view the constitutional mandate for the benefit of reservation-The contention is that the very object of a beneficial piece of legislation would be frustrated if the mathematical calculation as suggested is accepted. He submits t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) and Smt. Pholpati Devi. This is in consonance with the law enunciated by our Full Bench in the case of Rana Pratap Singh v. State of U.P. (1995) ACJ 200, and also in view of the latest Supreme Court decision in the case of Official Liquidator v. Dayanand (2008) 10 SCC 1. Without delving on this any further, we may add that the answer to the first question would either way resolve the issue, and as such question No. 2 stands answered accordingly. 18. Coming to the substantive part of the issue as referred to in question No. 1, Bertrand Russel (1872-1970) in his work Mysticism and Logic (1918) opined that mathematics could be defined as the subject in which we never know what we are talking about, nor whether what we are saying is true. This impression about the subject should not disillusion us for we have to specify the calculation, and clarify the discrepancy in the logic, or the absence of consideration of such logic in the case of Mahendra Kumar Gond in the light of the decisions of the earlier Division Benches. This is necessary in order to clarify the law which would help in deciding a large number of such pending matters on this issue and also for future guidance in relati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....366; में नहीं मिलते और ऐसी रिक्तियों को कार्य दृष्टि से भरा जाना आवश्यक ही समझा जाता है तो उनमें केवल तदर्थ आधार पर अस्थायी नियुक्तियां कर ली जायं तथा नियुक्ति के आदेशों में यह स्पष्ट भी कर दिया जाये। साथ ही उन ë....
X X X X Extracts X X X X
X X X X Extracts X X X X
....#2325;ो चयन के अनुवर्ती अवसर पर अग्रेनीत किया जायेगा किन्तु शर्त यह है कि अग्रेनीत की गयी विशेष रिक्तियां अनुसूचित जातियों और जनजातियों के सम्बन्ध में क्रमशः दो वर्षों और पांच वर्षों से अधिक पुरानी होने के का&#....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts and not to the vacancies. We find no such observation made in the said judgment. In fact, in the very beginning, the Court has stated that the expressions posts' and Vacancies' are often used in the executive instructions providing for reservation, problematically. 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 makes it clear that there must be posts to enable the vacancies to occur. The cadre strength is always measured by the number of posts comprising the cadre and the right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of vacancy has no relevance in operating the percentage of reservation. The Court has then explained that when all the roster points in the cadre are filled, the required percentage of reservation in post is achieved. The roster point in a cadre can be filled in only when the vacancies occur and not oth....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt any such proposition as advanced on behalf of the State. The mathematical calculation prohibits anything further, and so do the legal principles as noticed above. The game of digits and numbers cannot be taken further even by employing the intuitive mind of the great mathematician Ramanujam nor can such a view be made possible through the best of forensic legacy of law. 27. The rule of roster and the concept of a running account of the roster therefore would commence only if there are five or more posts for extending the benefit of 21% reservation in favour of the Scheduled Caste category. A numerically less strength figure, below the required number, would therefore not allow the roster to be operated, as a roster is there to implement the rule Of reservation and not a tool to create reservation. As noticed in the judgments of the Apex Court that in the event of any conflict between the percentage of reservation and the applicability of the roster, the former would prevail. Thus, in no event can the percentage of reservation be inflated or enhanced by the illusionary or imaginative application of the rule of roster. If such interpretation as suggested by the State is given the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cadre, then reservation has to be applied to the posts available for being filled up in accordance with the source of recruitment. This issue may arise in the context where a candidate is not available for filling up the post by way of promotion and the same has to be diverted to be filled up by direct recruitment. Such a situation will arrive in cases where the number of posts may be five or more so as to make the rule of reservation applicable. Taking for instance where there are say 8 posts in a cadre and the rule is, as presently involved, namely that 50% posts have to be filled up by way of promotion, in that event four posts have to be filled up by promotion and four by direct recruitment. The rule of reservation for appointment by way of promotion is availably only to scheduled castes in the State of U.P. and no such rule is available for other backward categories. They are entitled to the benefit of reservation only in the process of direct recruitment. In the example given above where four posts out of eight are to be filled up by direct recruitment, one post will have to be given to the other backward category keeping in view the 27% mandate of reservation in favour of su....