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IN
A.F.R.

Court No. - 10

Case :- SPECIAL APPEAL DEFECTIVE No. - 419 of

2017

Appellant :- Sri Tej Singh Lecturer In Economics

Janta Inter College
Respondent :- State Of U.P. & 4 Others
Counsel for Appellant :- Prabhakar Awasthi
Counsel for Respondent :- C.S.C.,Irshad Ali,Satya
Prakash Singh

With

Case :- WRIT - A No. - 15443 of 2016

Petitioner :- Kuldev Singh

Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Irshad Ali
Counsel for Respondent :- C.S.C.,Bajrang Bahadur
Singh,Pankaj Misra,Prabhakar Awasthi,Satya Prakash
Singh,Shailesh Pandey

Hon'ble Arun Tandon,J.

Hon'ble Ritu Raj Awasthi,J.

Learned counsel for the parties agree that the present

intra-court appeal as well as Writ-A No. 15443 of 2016
(Kuldev Singh versus State of U.P. & Others) giving rise to
the present appeal may be disposed of at this stage itself
without calling for any further affidavits specifically in view
of the order proposed to be passed today by the Court.

In view of the aforesaid statement, let the records of Writ-

A No. 15443 of 2016 be called for.

Heard Sri Prabhakar Awasthi, learned counsel for the

appellant, Sri Irshad Ali, learned counsel for respondent-
writ petitioner, Sri S.P. Singh, learned counsel for
respondent no.4 and learned Standing Counsel for
respondent nos. 1 to 3.

The present intra-court appeal arises out of the order of

the learned Single Judge dated 6th April, 2016 passed in
Writ-A No. 15443 of 2016 (Kuldev Singh versus State of
U.P. & Others).
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Facts relevant for deciding the controversy are as under:

Janta Inter College Muthakhera, District J.P. Nagar

(hereinafter referred to as the "institution") is an aided and
recognized intermediate college. Provisions of U.P.
Intermediate Education Act, 1921, Rules and Regulations
framed thereunder, U.P. High School Intermediate
Colleges (Payment of Salary to the Teachers and Other
Employees) Act, 1971 and the provisions of U.P.
Secondary Education Services Selection Board Act, 1982
are fully applicable to the teachers and staff of the said
institution.

Vacancy on the post of Lecturer (Economics) is stated to

have been caused on 1st July, 2002 due to retirement of
one Ram Pal Singh. The said vacancy according to the
parties before us fell within the promotion quota. It is their
case that there were four sanctioned of Lecturers in the
institution, two out of which were within the promotion
quota and remaining two posts were within the direct
recruitment quota. Two posts of Lecturers had already
been filled by direct recruitment, and on one post of
Lecturer (English) one Harpal Singh had already been
promoted. Therefore, the vacancy caused on 1st July,
2002 fell within the promotion quota.

The Committee of Management of the institution is stated

to have made a resolution on 17th December, 2002 for
applying the reservation against the vacancy so available
in Lecturer's Grade and thereafter a decision was taken to
promote the appellant Tej Singh as Lecturer (Economics)
against the said vacancy within the quota for Scheduled
Caste.

Since Tej Singh was a member of Scheduled Caste, he

was preferred in the matter of promotion to two other
senior teachers of the institution working in the L.T. grade.
Resolution of the Committee of Management is enclosed
at page 68 of the paper book. This resolution of the
Committee of Management was forwarded by the District
Inspector of Schools to the Joint Director of Education
vide letter dated 21st January, 2003. The letter of the
District Inspector of Schools also mentions that the
appellant Tej Singh was being promoted after reserving
the post of Lecturer (Economics) for Scheduled Caste.

The resolution and the papers transmitted by the District

Inspector of Schools were acted upon by the Regional
Level Committee and an order was made approving the
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promotion vide order dated 2nd April, 2003.

Appellant claims to have been appointed as Lecturer

(Economics) and to have continued as such till 2015,
when the Regional Level Committee passed an order
dated 30th December, 2015 holding that the application of
reservation on the vacant post of Lecturer (Economics)
and the promotion of the appellant was bad for two
reasons:

(a) no reservation could have been applied on the

promotional post,

(b) there was only two posts within the promotion quota
and therefore, also no reservation would be applicable.

It appears that the appellant made a review petition

contending before the Regional Level Committee that the
two senior L.T. Grade teachers had no objection to the
promotion of the appellant and therefore, even if the
reservation is not applied appellant would be entitled for
such consideration.

The Regional Level Committee on that basis has

proceeded to review its decision dated 30th December,
2015, under the order dated 11th March, 2016 and has
directed that the approval earlier granted in favour of the
appellant qua promotion on the post of Lecturer
(Economics) would hold good.

It is against this order passed on the review petition dated

11th March, 2016 that Writ-A No. 15443 of 2016 has been
filed by respondent Kuldev Singh. The Writ Court has
been pleased to grant an interim order staying the
operation of the order of the Regional Level Committee
dated 11th March, 2016. Appellant not being satisfied has
filed the present intra-court appeal.

From simple reading of the resolution of the Committee of

Management enclosed at page 68 of the paper book
dated 17th December, 2002 and the letter of the District
Inspector of Schools dated 21st January, 2003 enclosed
at page 70 of the paper book forwarding the said
resolution to the Joint Director of Education, it is
conclusively established that the appellant was
considered for promotion on the post of Lecturer
(Economics) against the vacant post within the promotion
quota only after applying the reservation and not because
of the claim for such promotion having been forgone by
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the senior teachers of the institution.

We are of the considered opinion that in view of the law

laid down by the Apex Court in the case of U.P. Power
Corporation Ltd. versus Rajesh Kumar & Others
reported in (2012) 7 SCC 1, no reservation in the matter
of promotion can be applied and further any action taken
in that regard has to be nullified. There is another aspect
of the matter, namely, that there were only two sanctioned
posts within the quota for promotion in the Lecturer's
grade available in the institution following the law laid
down by the Full Bench of this Court in the case of Heera
Lal Vs. State of U.P. and others reported in 2010(3)
ESC 2091, equal to 2010(3) UPLBEC 1761, no
reservation can be applied, inasmuch as for reservation in
favour of Scheduled Caste, it has been laid down that
there must be at least five sanctioned posts within the
cadre.

For both the aforesaid two reasons, we have no hesitation

to record that the promotion which was granted to the
appellant in the year 2003, after application of reservation
in favour of scheduled caste was patently illegal and
unsustainable and to that extent there was no reason for
the Regional Level Committee to have reviewed its earlier
order dated 30th December, 2015 and to have maintained
the approval as already noticed above was patently
illegal.

We are of the considered opinion that the order passed by

the Regional Level Committee dated 11th March, 2016 is
clearly unsustainable.

In view of the aforesaid conclusion we need not enter into

the issue as to whether the Regional Level Committee
had the power to review its earlier order specifically in the
circumstance when it was exercising Quasi Judicial
powers in the matter of a dispute pertaining to the
promotion on the post of Lecturer.

At this stage, Sri Prabhakar Awasthi, learned counsel for

the appellant submits before us that as on date the two
teachers in L.T. grade, who were senior to the appellant
and were qualified for the post of Lecturer (Economics)
have since retired. The appellant's claim can now be
considered against the vacant post of Lecturer
(Economics).

Sri Irshad Ali, learned counsel for the respondent-writ

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petition Kuldev Singh submits that he would have no
objection, if this Court requires the authority concerned to
consider the claim of all eligible candidates for promotion
strictly in accordance with Rule 14 of U.P. Secondary
Education Services Selection Board Rules, 1998
(hereinafter referred to as the "Rule, `1998').

In view of the aforesaid, having regard to the fact that the

vacancy of the post of Lecturer (Economics) continues to
be within the promotion quota, we dispose of the present
appeal as well as the writ petition giving rise to the
present appeal by providing that the claim of all eligible
candidates strictly in accordance with Rule 14 of Rules,
1998 as interpreted by the Five Judges' Bench of this
Court in the case of Smt. Sadhna versus State of U.P. &
5 Others (Special Appeal Defective No. 442 of 2016
dated 30th May, 2017) shall be considered by the
Regional Level Committee within a period of four weeks
from the date a certified copy of this order is filed before
the Regional Joint Director of Education, who is the
Chairman of the Regional Level Committee. Appropriate
directions shall be issued to the Committee of
Management of the institution for consequential action
being taken. We direct the Regional Level Committee to
summon the records as may be required from the
Committee of Management for the purpose.

The present intra-court appeal and the writ petition no.

15443 of 2016 are disposed of.

(Ritu Raj Awasthi, J.) (Arun Tandon, J.)

Order Date :- 17.8.2017

Sushil/-