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2013 DIGILAW 3072 (ALL)

Vidya Rai v. State of U. P. and 4 Ors.

2013-12-17

D.Y.CHANDRACHUD, SANJAY MISRA

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Sanjay Misra,J:- This special appeal arises from a judgment of the learned Single Judge dated 26th November 2013 by which a petition under Article 226 of the Constitution filed by the appellant had been dismissed. 2. The selection was for the Itinerant Teachers ( Mentally Retarded Group). 3. The grievance of the appellant was that the reservation has been wrongly applied to the six posts earmarked for the said group. From these six posts it is alleged that only two posts were allotted for General Category candidates while four posts were reserved (two for Other Backward Category and two for Scheduled Caste candidates). The learned Single Judge dismissed the petition after relying on the following submission made on behalf of the District Basic Education Officer; "In reply Sri B.P. Singh, learned counsel for the respondent, District Basic Education Officer, Azamgarh has referred to paragraph 3 of the counter affidavit and has submitted that there are total 25 posts earmarked for Itinerant Teacher (MR Group). As per the reservation policy, 6 posts would go to the Schedule Caste candidate, 7 post would go to OBC candidates and 12 posts would go to General Category candidates. As against 25 posts, from 19 working strength, there were 4 of the Scheduled Caste Category, 5 of the OBC Category and 10 of General Category and in such circumstances the remaining 6 posts for which selection has been made, it has to fulfil the reservation for the entire cadre on 25 posts by filling 2 posts from Scheduled Caste, 2 posts from OBC and 2 from General Category which will complete the reservation quota. Selections have accordingly been made and there is no illegality." 4. In Indra Sawhney Vs Union of India 1992 (S) 2 SCR 454, the Bench of Nine learned Judges of the Supreme Court held that the rule of 50 percent should be applied to each year and cannot be applied to the total strength of the Class, Category, service or cadre as the case may be. This has been followed in R.K. Sabharwal and Others Vs State of Punjab and Others 1995 (2) SCC 745 which was a decision of the Constitution Bench of the Supreme Court. 5. This has been followed in R.K. Sabharwal and Others Vs State of Punjab and Others 1995 (2) SCC 745 which was a decision of the Constitution Bench of the Supreme Court. 5. Since the learned Single Judge has not considered this aspect of the matter, we allow the special appeal and restore the writ proceedings back to the file of the learned Single Judge for fresh consideration. To facilitate an order being passed after due consideration of the governing principles of law including those which have been enunciated in the judgment referred to above we set aside the impugned order dated 26th November 2013. 6. Writ-A No. 4288 of 2012 is restored for hearing afresh and the rights and contentions to be urged before the learned Single Judge are kept open. The appeal is accordingly disposed of. There shall be no order as to costs. ________________