Heard Sri R. C. Tewari, learned counsel for the petitioner and the learned standing counsel for opposite party Nos. 1, 2 and 3. 2. The case starts with an advertisement, which was issued on 4-10-1998 for filling up three posts of Assistant Teachers B. T. C. in Arya Kanya Pathshala, Hardoi, copy of the advertisement is annexure-1 to this writ peti tion. 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 gen eral category candidate. On 10-7-1999, the Manager of the College sought approval from the District Inspector of Schools. The Dis trict Inspector of Schools vide his letter dated 12-7-1999 contained in annexure-4 to the writ petition, accorded his approval to the appoint ment 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 ap pointment. In any view of the matter, his approval marked a finality to the selection pro cess and accordingly appointment letters were, issued on 12-7-1999, itself, which is annexure-5 to this writ petition. On 13-7-1999, the petitioner joined the post as Assistant Teacher in the college in question. For some reason on 7-8-1999, opposite party No. 2 the Joint Accounts Officer, Directorate of Education, U. P. , Allahabad, directed the District Inspec tor of Schools to stop payment of salary and asked for entire file of approval of the petitioner and Smt. Rachna Agnihotri. On 2-12-1999, the opposite party No. 2 himself di rected 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 mak ing the representation dated 21-12-1999, the writ petition was filed before this Court be ing 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. When the salary was not paid even after mak ing the representation dated 21-12-1999, the writ petition was filed before this Court be ing 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 pre ferred any writ petition at that time. The present writ petition was filed by the petitioner Smt. Sita Trivedi against non payment of sal ary. On 27- 3-2000, the following order was passed:- "heard the learned counsel for the peti tioner and the learned standing counsel who has accepted notice on behalf of opposite par ties 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 ac cordance with the order dated 2-12-99, a copy of which has been annexed as Annexure- No. 7 to the writ petition or show cause to this Court. " 3. It may be noted that the Court had di rected the opposite parties to pay salary or to show- cause. 4. On 20-4-2000 opposite party No. 3 passed an order, in which the present District Inspector of Schools reviewed its earlier or der of his predecessor dated 12-7-1999 and rejected the claim of the petitioner for pay ment of salary. This order rejection was chal lenged by way of amendment, which was moved on May 4, 2000. This Court vide its order dated 18-9-2001 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 para graphs 1 A, 14a to 14h and also grounds from D-l to D-5. Certain amendment has also been prayed for in the relief clause. The amend ment application is allowed. The petitioner is permitted to incorporate the amendment within 24 hours. Put up this matter day after tomorrow. " 5. By this application the petitioner has prayed for adding para graphs 1 A, 14a to 14h and also grounds from D-l to D-5. Certain amendment has also been prayed for in the relief clause. The amend ment application is allowed. The petitioner is permitted to incorporate the amendment within 24 hours. Put up this matter day after tomorrow. " 5. In the reasons given by District Inspec tor of Schools vide letter dated 20-4-2000 it was held that while issuing the advertisement and giving appointment to the petitioner, the reservation rule was not followed. This Court on 20-9-2001, passed the interim order by which opposite parties were directed to pay the regular salary to the petitioner and the rejection order dated 20-4-2000 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 Dis trict Inspector of Schools has disapproved the payment of salary to the petitioner. The prin cipal reason given for disapproving the petitioners 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 pay ment. 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 res ervation rules in which one belongs to sched uled caste, two belong to O. B. C. and two be long 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 cat egory and petitioners appointment cannot be said to be on a post meant to be filled up by reserve category candidate. The petitioners appointment was earlier approved by the Dis trict Inspector of Schools by order dated 19th July, 1999 and at no point of time the order approving the appointment has been can celled. In view of the above the order dated 20-4-2000 shall remain stayed and the respon dents 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. " 6. In view of the above the order dated 20-4-2000 shall remain stayed and the respon dents 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. " 6. A stay vacation application was moved by the State along with the supplementary counter-affidavit to the amended writ petition. It may also be noted here that the counter-affidavit to the original writ petition was filed, which is on record. This stay vacation appli cation was also rejected on 11-7-2002 by this Court and the following order was passed:- "vide order dated 20-9-2001, this Court had passed an interim order staying the operation of the order dated 20-4-2000 and fur ther 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 en forcement of Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. The aforesaid Act came into force on 11-12-1993. Thereafter, three vacancies oc curred after the enforcement of the aforesaid Act, in which the petitioner was selected. His appointment was also approved by the Dis trict 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 20-9-2001. The application for vacating the interim order is hereby rejected and the order dated 20-9-2001 is confirmed. " 7. Special appeal was filed against the or ders dated 11-7-2002 and 20-9-2001 but the special appeal was also dismissed vide order dated 10-2-2003, which is quoted below :- "heard learned counsel for the appellants and Mr. The application for vacating the interim order is hereby rejected and the order dated 20-9-2001 is confirmed. " 7. Special appeal was filed against the or ders dated 11-7-2002 and 20-9-2001 but the special appeal was also dismissed vide order dated 10-2-2003, which is quoted below :- "heard learned counsel for the appellants and Mr. Shailendra Kanaujia for the sole re spondent. The order impugned in this Special Appeal is the order dated 11-7-2002 passed by the learned single Judge, refusing to vacate the interim order dated 20-9-2001. Apart from the fact that the impugned order is a purely inter locutory order and its perusal shows that it is based on good reasons, we find that this Spe cial Appeal is time barred by a period of five months and six days. We have gone through this application un der Section 5 of the Indian Limitation Act pre ferred by the appellant as also the objection filed thereto by the learned counsel for the respondent. In our view, no plausible reasons for con doning the aforesaid delay have been disclosed. Consequently, both on merits and on the ground of laches in preferring this Spe cial Appeal, this Special Appeal is dismissed in limine. However, it would be open to the appellants 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. " 8. 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 par ties 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. 9. Learned standing counsel has submit ted through his counter-affidavit that the appointment of the petitioner was against Sec tion 5 of the U. P. Public Services (Reserva tion for Scheduled Castes, Scheduled Tribes and Other Bakckward Classes) Act, 1994. Ac cording to him roster has not been followed and the two posts have been filled in by gen eral category although one post should have gone to backward class candidate. Ac cording to him roster has not been followed and the two posts have been filled in by gen eral 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 20-6-95 and 26-8-97 and one assistant teacher retired on 30-6-1998. In all there were three resultant vacan cies. Against the said vacancies, on 23-8-96 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 adver tised by the Committee of Management against which, Km. Rachna Agnihotri and Smt. Sita Trivedi, the petitioner, were ap pointed. Since these were all general category appointments, hence reservation rules were flouted and the appointments are bad. 10. 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 or der 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. 11. Learned counsel for the petitioner fur ther submitted that the appointment of the petitioner was approved by the District In spector of Schools, hence it was the respon sibility of the District Inspector of Schools to see that there was no violation of the Reser vation 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. 12. The main argument of the learned coun sel for the petitioner is that roster is not ap plicable on the number of vacancies; rather it applies to the number of sanctioned post i. e. to say strength of the cadre. Moreover, later on, he himself allowed the salary to be paid to the petitioner. 12. The main argument of the learned coun sel for the petitioner is that roster is not ap plicable 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 Pri mary Section. Out of these eight posts, five teachers were already working on the date of advertisement. Amongst five teachers work ing, 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 can didate 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 op posite parties have tried to apply the reserva tion on the number of vacancies and not on the total posts in the cadre, which is not cor rect. 13. 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 problemati cal. 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 mean ing 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 com prising 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 cadre-strength. The cadre strength is always measured by the number of posts com prising 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 cadre-strength. The concept of va cancy has no relevance in operating the per centage of reservation. " 14. The Constitutional Bench of Honble 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 16-A of the Constitution, was questioned, had reiterated earlier pronouncement of Honble Supreme Court and held that while granting reserva tion to any section of society, the Government cannot travel beyond 50% of total strength of the cadre relying upon the basic structure pro pounded by Honble Supreme Court in the case of (1973) 4 SCC 225 : ( AIR 1973 SC 1461 ) Kesavananda Bharati v. State of Kerala. 15. 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 hav ing 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 pe titioner has been teaching now for nearly a decade. There is also no case against her work and conduct. 16. In view of the above discussions, writ petition succeeds and is allowed. A writ of certiorari quashing the impugned order 20-4-2000 is issued. The opposite parties are di rected to pay to the petitioner the salary/back-wages from the date of her initial appoint ment i. e. 13-7-1999 up to the date when they started paying her current salary. Petition allowed .