JUDGMENT Hon’ble Arun Tandon, J.—Abha Rani on the basis of her having been appointed as Lecturer Drawing and Painting in Arya Kanya Pathshala Inter College, Muzaffarnagar has filed this writ petition with the following reliefs : “(a) To issue a writ in the nature of mandamus directing the Respondent Nos. 1 and 2 to treat the petitioner as a validity appointed teacher in the college. (b) To issue an appropriate, writ order or direction commanding the respondent nos 1 and 2 not to interfere in the rights of the petitioner to continue to be a teacher in persuance of her appointment. (c) To Issue an appropriate writ order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case. (d) To award the costs of this writ petition in favour of the petitioner.” 2. After considering the case set up by Sri Abha Rani the Court granted an interim order in this petition on 30.4.1981 which was extended from time to time. The writ petition was dismissed by a Hon’ble Judge on 10.12.1996 and on the same date by a separate order the stay application was also rejected. A restoration application was filed, which was allowed and the writ petition was restored to its original number. But from the record, it appears that the interim order was not restored. 3. The writ petition was finally decided under order 13.12.2010. The Court held that her appointment was null and void, salary paid to her was a fraud on public exchequer and accordingly issued notice to the Committee of Management to show-cause, as to why the entire salary paid to Abha Rani be not recovered from the Management. Upto that date the Management had filed a counter-affidavit and had supported the case of the petitioner both in the matter of selection as well as in the matter of her continuance without disclosing the details of the advertisement and mode of selection. 4. Abha Rani filed a Special Appeal against the findings of the writ Court qua her appointment and continuance, being Special Appeal No. 35 of 2011. 4. Abha Rani filed a Special Appeal against the findings of the writ Court qua her appointment and continuance, being Special Appeal No. 35 of 2011. The appeal has been allowed under the order dated 12th January, 2011 and the Division Bench has set aside the order dated 30th December, 2010 as well as order of the Regional Inspectress of Girl Schools dated 4th February, 1991 and it has been held that the services of Abha Rani be deemed to be approved. 5. The Division Bench has noticed that there was no candidate within the reserved category available and therefore, the selection of Abha Rani was valid, and further, that Abha Rani had worked for so many years under the interim order. It has also been recorded that mere non mention of the particular post as reserved in the advertisement would not vitiate the selection. 6. However, the part of the order where by notice was issued to the management was not interfered by the Division Bench in the appeal. 7. In response to the notice which was issued by this Court, the Committee of Management has filed supplementary counter-affidavit alongwith exemption application. In the supplementary affidavit mode and manner of appointment of Abha Rani, along with the document pertaining to the alleged advertisement, list received from the Office of the Regional Inspectress of Girl Schools of the candidates entitled to be considered for selection, letter for fixation of date for interview as well as the proceedings of the Selection Committee have been brought on record. 8. According to the Management the vacancy was advertised. All applications received in the office of the Regional Inspectress of Schools in response of advertisement, were numbered and quality point were awarded. The Inspector forwarded list of the candidate to be invited for interview. The Selection Committee which included Principal and Manager of the Institution interviewed the seven candidates and selected the best amongst them. 9. I have heard learned counsel for the Management and the Standing Counsel. 10. It is not in dispute that the vacancy on the part of lecturer of art and drawing alongwith another vacancy on the post of Assistant Teachers were advertised. One post was reserved for Scheduled Caste Scheduled Tribe and the Other for Backward Class. 9. I have heard learned counsel for the Management and the Standing Counsel. 10. It is not in dispute that the vacancy on the part of lecturer of art and drawing alongwith another vacancy on the post of Assistant Teachers were advertised. One post was reserved for Scheduled Caste Scheduled Tribe and the Other for Backward Class. It is further not in dispute that within seven candidates recommended for interview after awarding of quality point marks by the Regional Inspectress of Girl Schools was one Smt. Omwati Pall a member of other backward class category. She was not selected by the Committee on the ground that she was lower in merit than the selected candidate who belonged to general category. 11. The papers pertaining to the Selection were transmitted to the Regional Inspectress of Girl Schools. The Regional Inspectress of Girl Schools refused to, note the appointment for the purposes of payment of salary from the State Exchequer under order dated 3.3.1981 which reads as follows : izsf"kdk] e.Myh; ckfydk fon;ky; fujhf{kdk] izFke eaMy] esjBA lsok esa] izcU/kd] vk;Z dU;k bUVj dkyst] eq0 uxjA i=kad% vFkZ@8236@80&81 fnukad 3&3&81 fo"k;%& p;u lfefr }kjk p;fur dyk izoDrk dh fu;qfDr uksV djus ds ckjsa essaA egksn;] mi;qZDr fo"k;d vkids i=kad f_dk0@v&3&1@80&81 fnukad 12&2&81 ds lanHkZ esa fuosnu gS fd mDr vkids foKkiu vuqlwfpr@fiNMh tkfr ds fy;s mDr in lqjf{kr Fkk rFkk mDr in gsrw fiNMh tkfr dh vH;fFkZuh p;u lfefr ds lEeq[k izLrqr Hkh gqbZ gSA vr% vkj{k.k vH;fFkZuh ls gh mDr in dh iwfrZ dh tk;sxhA vkj{k.k dh vH;fFkZuh ds ctk; izLrkfor lkekU; vH;fFkZuh dk pquko vfu;fer gS vkSj mldh fu;qfDr uksV ugh dh tk ldrhA Hkonh; l- daoj e.Myh; ckfydk fon;ky; fujhf{kdk] izFke eaMy] esjBA 12. It is, therefore clear that the Regional Inspectress of Schools refused to note the appointment of the petitioner on the ground that there was a reserved category candidate available at the time of selection who had appeared in the interview. The post being reserved could not have been offered to the General category candidate in the facts of the case. From the reliefs which had been prayed in the present writ petition as quoted above, it is apparent that there was no challenge to the order dated 3.3.1981. 13. The post being reserved could not have been offered to the General category candidate in the facts of the case. From the reliefs which had been prayed in the present writ petition as quoted above, it is apparent that there was no challenge to the order dated 3.3.1981. 13. It admitted that Sri Omwati was possessed of all the minimum qualifications for the post of lecturer of painting and drawing as prescribed under Appendix ‘A’ to Chapter II of the Regulations framed under the U.P. Intermediate Education Act. 14. The Selection Committee has wrongly compared the inter-se merit of Omwati with other General category candidate and thereafter to have declared her unsuitable. Regulation 10 of Chapter II of the Regulation framed whether U.P. Intermediate Education Act does not contemplate selection against reserved posts on the basis of inter se merit between reserved category candidate and general category candidates. As against reserved posts the merits has to be judged inter se between the reserved category candidates and not with general category candidates. Further the Regulation do not lay down any minimum marks to be obtained during interview so as to be held eligible for the post. 15. The selections in question pertain to a period prior to the applicability of U.P. Act No. 5 of 1982. The procedure to be followed in the facts of the case would be the one as provided for under Regulation 10 of Chapter II of the Regulations framed under the U.P. Intermediate Education Act. The committee of Management has to intimate the vacancy to the Inspector and advertise the same is two newspapers having vide circulation at least one at the State level. The applications received by Regional Inspectress of Girls Schools are to be serially number, quality point marks are to be awarded having regard to the academic career of the candidates. Seven time the number of post in order of merit as per the quality point marks received by candidates are to be invited for interview. The Selection Committee, on the basis of quality point marks and marks obtained in interview prepares the select list and forwards the same, to the Chairman of the management/Manager. A copy of the same is also forwarded to the Inspector concerned. The Selection Committee, on the basis of quality point marks and marks obtained in interview prepares the select list and forwards the same, to the Chairman of the management/Manager. A copy of the same is also forwarded to the Inspector concerned. The Selection Committee is to comprise of Manager, Principal and the experts appointed by the Regional Deputy Director of Eduction under Regulation 10 (2)-G. The Chairman of the Select candidate has to prepare the note of the proceedings of the selection. 16. In the facts of the case, this Court finds that no records disclosing the quality point marks and the marks awarded in interview to each of the candidates have been produced. Only a letter of the Chairman signed by the experts disclosing the select list (without the marks) has been enclosed as Annexure 2. The basis of the selection has not been disclosed. This Court finds from the said document that Smt. Omwati Pal a candidate belonging to other backward class category had participated in that interview but she has not been selected, on the ground that he was not eligible. It may be recorded no other candidate belonging to other backward class had participated in the interview. The records reflects that inter se merits of reserved category candidate had been judged with open category candidate while preparing the select list. In the facts of the case, the vacancy was reserved for other backwards class, therefore, Smt. Omwati Pal was not required to compete with the candidates of the general category. The entire recommendation of the selection would therefore fall. It is not the case of the Management that respondent No. 4 Sri Omwati Pal lacked any essential qualifications for the post in question. 17. What is further surprising to note is that the selection proceeding had taken place on 25.1.1981, on the vary next day appointment letter was issued in favour of the selected candidates i.e. on 26.2.1996 and the selected candidate had joined on 2.2.1981 while the rules contemplate issuance of appointment letter under resolution of the Committee of Management by registered post. 18. 18. In any view, of the matter one’s the Regional Inspectress of Girls Schools has refused to note the appointment the consequences as contemplated by Regulation 19 Chapter-II of the Regulations framed under the U.P. Intermediate Education Act follow: The Regulation 19 reads as follows : “Regulation 19: Where any person is appointed as, or any promotion is made on any post of head of institution or ; teacher in contravention of the provisions of this chapter or against any post other than a sanctioned post the Inspector shall decline to pay salary and other allowance, if any, to such person where the institution is covered by the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act 1971, and in other cases shall decline to give any grant for the salary and allowances in respect of such person.” 19. It is, therefore clear that the order of Regional Inspectress of Girl Schools dated 3.3.91 refusing to note the appointment of Abha Rani virtually amounts to an order declining payment of salary to the candidate from the State Exchequer. This order has not been challenged by Abha Rani or by the Committee of Management. Therefore, if she has worked and is entitled to salary because of the order of the High Court her salary has to be paid by the management from its own resources. 20. The State cannot be saddled with the responsibility of payment of salary in respect of her appointment so long as the order dated 3.3.1981 stands on record. 21. The Division Bench has not quashed the order dated 3.3.1981. Further this Court finds that the order dated 4.2.1981 was also not challenged in the writ petition. A reserved category candidate was available and was party to the writ petition, as respondent No. 4. The said Respondent No. 4 had filed counter-affidavit. Thus availability of reserved category candidate duly qualified is very much writ large on record of the present writ proceeding. 22. This Court finds that the sufficient reasons have been recorded by the Regional Inspectress of Girl Schools for not noting the appointment of Abha Rani. The said Respondent No. 4 had filed counter-affidavit. Thus availability of reserved category candidate duly qualified is very much writ large on record of the present writ proceeding. 22. This Court finds that the sufficient reasons have been recorded by the Regional Inspectress of Girl Schools for not noting the appointment of Abha Rani. In the facts on record, and with due respect to the judgment of the Division Bench, I have no hesitation to record that the appointment of Abha Rani has been made by the Management, she is entitled to salary, in view of the judgment of the Division Bench, but the sole responsibility for such payment is upon the Management itself and not on the state in view of the Regulation 19, Chapter-II of the Regulations framed under the Intermediate Education Act read with the order dated 3.3.1981. The Management is liable to refund the entire salary paid to the petitioner to the State Government and the State Government is held entitled to recovered the same in accordance with law from the Management. 23. The writ petition is disposed of. ——————