Sita Trivedi vs Director of Education, Madhyamik, U.P., Allahabad & Ors.

Heard Sri R. C. Tewari, learned counsel for the petitioner and the learned standing counsel for opposite party Nos. 1, 2 and 3.

The case starts with an advertisement, which was issued on 4101998 for filling up three posts of Assistant Teachers B.T.C. in Arya Kanya Pathshala, Hardoi, copy of the advertisement is annexure1 to this writ petition. The case of the petitioner is that he along with Smt. Rachna Agnihotry, were selected against the two general category posts. It may be mentioned here that out of the three posts mentioned above, one post was reserved for SC/ST and the remaining two posts for general category candidate. On 1071999, the Manager of the College sought approval from the District Inspector of Schools. The District Inspector of Schools vide his letter dated 1271999 contained in annexure4 to the writ petition, accorded his approval to the appointment of the petitioner and Smt. Rachna Agnihotry in B.T.C. pay scale with the rider that if any irregularity would be found in the appointment, then the appointment would be cancelled. It is strange note by the District Inspector of Schools because he should have granted approval only after ascertaining himself that there was no irregularity for the appointment. In any view of the matter, his approval marked a finality to the selection process and accordingly appointment letters were, issued on 1271999, itself, which is annexure5 to this writ petition. On 1371999, the petitioner joined the post as Assistant Teacher in the college in question. For some reason on 781999, opposite party No. 2 the Joint Accounts Officer, Directorate of Education, U.P., Allahabad, directed the District Inspector of Schools to stop payment of salary and asked for entire file of approval of the petitioner and Smt. Rachna Agnihotri. On 2121999, the opposite party No. 2 himself directed the District Inspector of Schools to make payment to the petitioner as well as Km. Rachna Agnihotri but the salary was not paid. When the salary was not paid even after making the representation dated 21121999, the writ petition was filed before this Court being W.P. No. 687(SS) 2000 Km. Rachna Agnihotri v. Director of Education, U.P., Allahabad, in which interim order was passed to pay salary to Km. Rachna Agnihotri. In compliance of this order, Km. Rachna Agnihotri was paid salary but the petitioner could not be paid because she had not preferred any writ petition at that time. The present writ petition was filed by the petitioner Smt. Sita Trivedi against non payment of salary. On 2732000, the following order was passed:

"Heard the learned counsel for the petitioner and the learned standing counsel who has accepted notice on behalf of opposite parties Nos. 1 to 3. Issue notice to opposite party No. 4. List this petition along with the record of writ petition No. 687 (SS) 2000 in the week commencing 01st May, 2000."

"In the meantime, the opposite parties are directed to pay salary to the petitioner in accordance with the order dated 21299, a copy of which has been annexed as Annexure No. 7 to the writ petition or show cause to this Court."

It may be noted that the Court had directed the opposite parties to pay salary or to show cause.

On 2042000 opposite party No. 3 passed an order, in which the present District Inspector of Schools reviewed its earlier order of his predecessor dated 1271999 and rejected the claim of the petitioner for payment of salary. This order rejection was challenged by way of amendment, which was moved on May 4, 2000. This Court vide its order dated 1892001 passed the following order allowing the amendment application :

"Heard counsel for the petitioner and the learned standing counsel. By this application the petitioner has prayed for adding paragraphs 1 A, 14A to 14H and also grounds from Dl to D5. Certain amendment has also been prayed for in the relief clause. The amendment application is allowed. The petitioner is permitted to incorporate the amendment within 24 hours. Put up this matter day after tomorrow."

In the reasons given by District Inspector of Schools vide letter dated 2042000 it was held that while issuing the advertisement and giving appointment to the petitioner, the reservation rule was not followed. This Court on 2092001, passed the interim order by which opposite parties were directed to pay the regular salary to the petitioner and the rejection order dated 2042000 was stayed. For convenience the order is quoted below:

"Heard counsel for the petitioner and learned standing counsel."

"By order dated 20th April, 2000, the District Inspector of Schools has disapproved the payment of salary to the petitioner. The principal reason given for disapproving the petitioner''s payment of salary is that three posts which have fallen vacant are to be filled up by reserve category and on one post one Smt. Rachna Agnihotri was approved for payment. In paragraph 14C of the writ petition petitioner has categorically stated that against 8 sanctioned posts, 5 Assistant Teachers are working since before the application of reservation rules in which one belongs to scheduled caste, two belong to O.B.C. and two belong to general class category. Counsel for the petitioner has submitted that under the U.P. Act No. 4 of 1994, if the earlier teachers belonging to reserve category are taken into consideration, all posts out of three which have fallen vacant will not go in reserve category and petitioner''s appointment cannot be said to be on a post meant to be filled up by reserve category candidate. The petitioner''s appointment was earlier approved by the District Inspector of Schools by order dated 19th July, 1999 and at no point of time the order approving the appointment has been cancelled. In view of the above the order dated 2042000 shall remain stayed and the respondents are directed to pay current salary to the petitioner as Assistant Teacher in Arya Kanya Pathshala Inter College, Hardoi and continue to pay salary regularly."

A stay vacation application was moved by the State along with the supplementary counteraffidavit to the amended writ petition. It may also be noted here that the counteraffidavit to the original writ petition was filed, which is on record. This stay vacation application was also rejected on 1172002 by this Court and the following order was passed:

"Vide order dated 2092001, this Court had passed an interim order staying the operation of the order dated 2042000 and further directed the respondents to pay current salary to the petitioner as assistant teacher in Arya Kanya Pathshala Inter College, Hardoi, and continue to pay salary regularly. The aforesaid order was passed on the basis that there are eight sanctioned post of assistant teachers in the aforesaid institution and five assistant teachers are working before the enforcement of Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. The aforesaid Act came into force on 11121993. Thereafter, three vacancies occurred after the enforcement of the aforesaid Act, in which the petitioner was selected. His appointment was also approved by the District Inspector of Schools. The petitioner was not being paid salary on the ground that her appointment is against a reserved post. While passing the interim order the Court, came prima facie to the conclusion that since three teachers belonging to reserved category are already working since before the reservation, if any, can only be of one post and not all the three posts. This fact regarding working of three teachers belonging to reserved category have not been disputed in the affidavit, filed in support of the application for vacating the interim order. In this view of the matter, I am not inclined to vacate the interim order dated 2092001.

The application for vacating the interim order is hereby rejected and the order dated 2092001 is confirmed."

Special appeal was filed against the orders dated 1172002 and 2092001 but the special appeal was also dismissed vide order dated 1022003, which is quoted below :

"Heard learned counsel for the appellants and Mr. Shailendra Kanaujia for the sole respondent.

The order impugned in this Special Appeal is the order dated 1172002 passed by the learned single Judge, refusing to vacate the interim order dated 2092001. Apart from the fact that the impugned order is a purely interlocutory order and its perusal shows that it is based on good reasons, we find that this Special Appeal is time barred by a period of five months and six days.

We have gone through this application under Section 5 of the Indian Limitation Act preferred by the appellant as also the objection filed thereto by the learned counsel for the respondent.

In our view, no plausible reasons for condoning the aforesaid delay have been disclosed. Consequently, both on merits and on the ground of laches in preferring this Special Appeal, this Special Appeal is dismissed in limine. However, it would be open to the appellant''s counsel to prefer an application before the learned single Judge for hearing the main writ petition wherein the impugned order has been passed on expedited basis."

The case of the petitioner is that after rejection of the stay vacation application and dismissal of the special appeal, interim order, has attained finality. Moreover, opposite parties are paying current salary to the petitioner regularly and she is continuously working on the said post. Hence, there is no occasion to uproot her after almost ten years of service.

Learned standing counsel has submitted through his counteraffidavit that the appointment of the petitioner was against Section 5 of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Bakckward Classes) Act, 1994. According to him roster has not been followed and the two posts have been filled in by general category although one post should have gone to backward class candidate. He explains that according to roster, the first vacancy should go to the scheduled caste, the second to the general category, third to the backward category and then again fourth should go to the general category. In the primary section of the Arya Kanya Pathshala Inter college, Hardoi, three vacancies arose due to death of two assistant teachers on 20695 and 26897 and one assistant teacher retired on 3061998. In all there were three resultant vacancies. Against the said vacancies, on 23896 Committee of Management appointed one M/s. Baby Bathom in general category, which was wholly illegal. A writ petition was filed in the matter, in which counter affidavit was also filed but no interim order was passed. The subsequent two vacancies were advertised by the Committee of Management against which, Km. Rachna Agnihotri and Smt. Sita Trivedi, the petitioner, were appointed. Since these were all general category appointments, hence reservation rules were flouted and the appointments are bad.

Learned counsel for the petitioner has submitted that Baby Bathom did not join the services; neither she got any approval from the District Inspector of Schools nor any order from the Court. She was never in service and on the date of advertisement, her post was lying vacant. It appears that there were three vacant posts at the time of advertisement.

Learned counsel for the petitioner further submitted that the appointment of the petitioner was approved by the District Inspector of Schools, hence it was the responsibility of the District Inspector of Schools to see that there was no violation of the Reservation Rules. The moment approval was granted by the District Inspector of Schools, the petitioner developed a vested right. The Lekhadhikari had no jurisdiction to stop the payment of the salary. Moreover, later on, he himself allowed the salary to be paid to the petitioner.

The main argument of the learned counsel for the petitioner is that roster is not applicable on the number of vacancies; rather it applies to the number of sanctioned post i.e. to say strength of the cadre. In the present case, there were total eight posts in the Primary Section. Out of these eight posts, five teachers were already working on the date of advertisement. Amongst five teachers working, there were two belonging to the OBC category; one SC category; and two of the general category. This goes to show that three posts were lying vacant. In case, out of these three vacancies; two posts were filled in by general category candidates Km. Rachna Agnihotri and Smt. Sita Trivedi; then in all there will be only four general category candidate in the total strength of eight teachers. This is exactly 50% of the total posts. It is settled principle that reservation more than 50% of the posts cannot be allowed. The opposite parties have tried to apply the reservation on the number of vacancies and not on the total posts in the cadre, which is not correct.

In support of his contention, learned counsel for the petitioner has placed reliance on the decision of Apex Court in R. K. Sabharwal and others v. State of Punjab and others reported in 1995(2)SCC 745 : (AIR 1995 SC 1371) in which their Lordships have held in para 6 of the report as under :

"The expressions ''posts'' and ''vacancies'', often used in the executive instructions providing for reservation, are rather problematical. The word ''post'' means an appointment, job, office or employment. A position to which a person is appointed. ''Vacancy'' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a ''post'' in existence to enable the ''vacancy'' to occur. The cadre strength is always measured by the number of posts comprising the cadre. 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 cadrestrength. The concept of ''vacancy'' has no relevance in operating the percentage of reservation."

The Constitutional Bench of Hon''ble Supreme Court in a case reported in 2006 (8) SCC 212 : (AIR 2006 SC 71) M. Nagraj and others v. Union of India and others where amendments inserted as Article 16A of the Constitution, was questioned, had reiterated earlier pronouncement of Hon''ble Supreme Court and held that while granting reservation to any section of society, the Government cannot travel beyond 50% of total strength of the cadre relying upon the basic structure propounded by Hon''ble Supreme Court in the case of (1973) 4 SCC 225 : (AIR 1973 SC 1461) Kesavananda Bharati v. State of Kerala.

The appointment of the petitioner was otherwise in accordance with the rules and procedure. The posts were duly advertised and the proper selection was done. The petitioner was qualified and the approval was granted by the then District Inspector of Schools having jurisdiction. The Lekhadhikari also after making initial objection, later on allowed the payment of salary. There appears to be no justification in not allowing the petitioner to continue in service and not paying her salary. The appointment of Km. Rachna Agnihotri who was appointed along with the petitioner through same advertisement, has already been accepted as valid by the department. The petitioner has been teaching now for nearly a decade. There is also no case against her work and conduct.

In view of the above discussions, writ petition succeeds and is allowed. A writ of certiorari quashing the impugned order 2042000 is issued. The opposite parties are directed to pay to the petitioner the salary/backwages from the date of her initial appointment i.e. 1371999 up to the date when they started paying her current salary.