Geeta Devi and Another vs State of U.P. and Others

This special appeal is directed against the order dated 12.07.2010 passed by the learned Single Judge. The dispute raised herein is in relation to the procedure of appointment as a Cook for preparing mid-day meals to be provided to children of Basic Schools under the Scheme promulgated by the Central Government and executed by the State Government.

The challenge of the appellants was two fold. It was firstly contended that the policy, which provided for reservation of more than 50 percent, is violative of Article 14 of the Constitution of India and also the reservation policy, and consequently has to be struck down.

Nothing has been shown to us from the policy, which provides for reservation of more than 50 percent. All that is pointed out to us is the roster, which is maintained. The roster, by itself, cannot be said to be amounting to provide a specific reservation of a particular category. In the instant case, if there be any appointment in excess of the quota of reservation as laid down by the Supreme Court and is applicable to the State, it will be open to the appellants to challenge the appointment of such person, who is appointed in excess of the quota.

It is true that the judgment of this Court in Writ Petition No. 6690 (M/B) of 2010, Prathmik Vidyalaya Rasoiya Welfare Association v. State of U.P. and Ors. decided by the Lucknow Bench of this Court on 19.07.2010 did not decide aforesaid issue, as in the said case, the challenge was to consider the notification that excluded male candidates. The challenge was made by the Association of male candidates. However, in our opinion, considering the fact that the policy does not lay down percentage and only roster has been applied, that challenge would not be available to the appellants.

The other issue pertains to reservation itself. The learned Single Judge has noted that if there be less than 5 posts, then considering the Full Bench Judge of this Court in Civil Misc. Writ Petition No. 51617 of 2009 Heera Lal v. State of U.P. and Ors. decided on 9th July 2010, there can be no reservation.

Considering the above, in our opinion, there is no merit in the appeal. However, if in an individual case, the quota has exceeded or there is any other illegality, either on merit or otherwise, it will be open to that individual to challenge the same separately, subject to any alternative remedy that may be available to him.

With the aforesaid observations, the appeal stands disposed of.