R.S. Garg vs State Of U.P. & Ors

This appeal is directed against a judgment and order dated 22.5.2000 passed by the High Court of Judicature at Allahabad in Writ Petition No.377(SB)/97, whereby and whereunder the writ petition filed by the appellant herein questioning an order of promotion dated 24.5.1997 passed in favour of respondent No.3 herein was dismissed. Both the appellants and the said 3rd respondent were appointed on an ad hoc basis to the post of Inspector, re-designated as Assistant Director of Factories, on or about 3.1.1972 and 17.1.1987 respectively. Whereas the appointment of the appellant herein was in terms of Uttar Pradesh Labour Department (Factories and Boilers Division) Officers Service (Second Amendment) Rules, 1992 ('1992 Rules', for short) indicating selection through Public Service Commission; the 3rd respondent was appointed purely on ad hoc basis till the selection of a regular candidate by the Public Service Commission and joining the post or till such time his services were required by the department. The appellant was confirmed in his post on 13.5.1978, whereas the 3rd respondent purported to have been appointed on a regular basis without undergoing the requisite selection process as provided for in the 1992 Rules and without being recommended therefor by the Public Service Commission. The State of U.P., by an order dated 15.11.1995 appointed the 3rd respondent as Assistant Director Factories on regular basis with effect from the date of issuance of the order providing that he would be on probation for a period of two years. Indisputably, there were six posts of Deputy Director of Factories in the State of U.P., out of which four posts were designated as Deputy Director of Factories (Administration), one as Deputy Director of Factories (Chemical) and one as Deputy Director of Factories (Engineering). The post of Assistant Director of Factories was the feeder post. As noticed hereinbefore, both the posts of Assistant Director of Factories, formerly known as Inspector of Factories, and Deputy Director of Factories (Admn.) were to be filled up through the Public Service Commission. It is furthermore not in dispute that the educational qualification required for appointment to the post of Deputy Director (Chemical), vis-`-vis, Deputy Director of Factories (Admn.) and Deputy Director of Factories (Engineering) are different. It is also not in dispute that out of the four posts of Deputy Director of Factories (Admn.) one is to be filled up by an officer belonging to reserved category.

The wife of the 3rd respondent, Smt. Prem Lata, made a representation to the Chief Minister of the State of U.P. that her husband, who belonged to Scheduled Caste, was victimized and was not being promoted to the post of Deputy Director of Factories, whereupon instructions were issued to the Principal Secretary, Labour, to intimate to her as to why the promotion of 3rd respondent was being delayed. A proposal was made for converting the said post of Deputy Director of Factories (Chemical) to the post of Deputy Director of Factories (Admn.) upon obtaining sanction from the Chief Minister, although, the concurrence of the Finance Department was not obtained therefor. A note-sheet to the aforementioned effect on 15.4.1997 was drawn which is to the following effect:

The said note-sheet was placed before the then Chief Minister, State of U.P. on 20.4.1997 and was approved on 21.4.1997. The Principal Secretary issued a letter to the Labour Commissioner, U.P. that the Governor, after due consideration, directed conversion of one temporary post of Deputy Director of Factories (Chemical) into the post of Deputy Director of Factories (Admn.). It was stated:

The 3rd respondent, pursuant to the purported conversion of the said post, was promoted as Deputy Director of Factories (Administration). The appellant herein filed a writ petition questioning the same before the Lucknow Bench of the High Court of Judicature at Allahabad praying for the following reliefs:

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:

The matter relating to reservation is governed by The Uttar Pradesh Public services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 ('the Act', for short). Section 3 thereof provides for reservation for direct recruitment in terms whereof 21% of the posts is reserved for Scheduled Caste candidates. By a Government order dated 10.10.1994, reservation to the same extent was permitted. However, the roster in regard thereto was prepared stating that the 1st post and the 6th post shall be reserved for the scheduled caste candidate. The seniority list was published on 15.11.1995 wherein the name of the 3rd respondent was shown at serial number 6. It is not in dispute that the name of the appellant figured at serial number 6 in the seniority list published on 28.4.1989. At that point of time, the 3rd respondent was out of reckoning. The appointment of the 3rd respondent was on an ad hoc basis. It is not in dispute that while making such appointment the provisions of the 1992 Rules have not been complied with. His services were sought to be regularized only in the year 1995.

Mr. Dwivedi submitted that the post of Deputy Director of Factories (Engineering) would be forming separate cadre. We do not agree. It is not disputed that the said post has also been considered at par with the post of Deputy Director of Factories (Administration), as the qualification for holding the said post was the same.

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. 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.

For the reasons aforementioned, the impugned judgment cannot be sustained.

It is not a case, where we should refrain ourselves from exercising our discretionary jurisdiction. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. The respondents shall bear the costs of the appellant throughout. Such costs would be borne by the State as also the 3rd respondent equally, which is assessed at Rs.50,000/-.