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Allahabad High Court · body

2015 DIGILAW 3393 (ALL)

Rekha v. Secretary Basic Shiksha Parishad Alld.

2015-10-29

B.AMIT STHALEKAR

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JUDGMENT B. Amit Sthalekar, J. The petitioner is seeking quashing of the order passed on the salary bill dated 28.11.1998 whereby his name has been deleted on the ground that the approval to the petitioner's selection has not been granted. Later on by way of amendment the order dated 21.11.1998 has also been challenged disapproving the appointment of the petitioner. 2. Briefly stated, the facts of the case are that there is an Institution known as Vidyanand Junior High School, Tirgaran District Meerut which is a recognized Institution governed by the provisions of U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the Rules, 1978 only). The post of Assistant Teacher in the L.T. Grade fell vacant and one substantive post lay unfilled. The Committee of Management of the School sought permission from the District Basic Education Officer to advertise the vacancy. The permission was granted by the District Basic Education Officer through letter dated 12.8.1998. Accordingly advertisement was issued on 23.8.1998 in the 'Nav Bharat Times' news paper. The last date for submitting the form was 5.9.1998 and the candidates were required to appear in the interview on 6.9.1998. The date of making correction in the form was also given as 5.9.1998. The Committee of Management further wrote to the District Basic Education Officer to send his nominee on 6.9.1998 to supervise the selection and the District Basic Education Officer, Meerut-respondent no. 2 thereupon deputed one Prem Lata Agarwal, Assistant District Basic Education Officer, Meerut to participate in the selection procedure to be held on 6.9.1998. 3. In pursuance of the advertisement 11 applications were received, the petitioner being one of them. It is stated that only 7 candidates appeared before the selection committee. No candidate from the schedule caste or other backward caste was present in the selection. It is stated that the petitioner is M.A. in Sanskrit and B.Ed and secured highest marks of 54%. Accordingly the petitioner was selected for appointment as Assistant Teacher and two other candidate who secured II and III positionswere kept in the waiting list. Subsequently, the Committee of Management sent a declaration dated 6.9.1998 to the respondent no. 2 pointing out that the Minority Commission had declared the Jain community as a minority. Thereafter the selection proceedings were forwarded by the Committee of Management to the respondent no. Subsequently, the Committee of Management sent a declaration dated 6.9.1998 to the respondent no. 2 pointing out that the Minority Commission had declared the Jain community as a minority. Thereafter the selection proceedings were forwarded by the Committee of Management to the respondent no. 2 through its letter dated 6.9.1998 which was received by the respondent no. 2 on 11.9.1998. It is stated that in-spite of the papers having been sent to the respondent no. 2 no orders were passed and more than one month had elapsed and therefore in terms of Rule 10(5)(iii) if the Basic Education Officer does not communicate his decision within one month from the date of receipt, under clause (4) of Rule 10 he shall be deemed to have accorded the approval to the recommendation made by the Selection Committee. It is therefore submitted that the petitioner has been deemed to have been appointed on the post of Assistant Teacher and therefore by virtue of appointment letter dated 12.10.1998 she submitted her joining on 13.10.1998 and is working since then. Information regarding the joining of the petitioner was communicated by the Committee of Management to the Basic Education Officer vide letter dated 13.10.1998 which was received in the office of the respondent no. 2 on 15.9.1998. However, when salary was not being paid to the petitioner she submitted a representation on 26.11.1998 for payment of salary. It is stated that the salary bill for the month of October, 1998 was sent by the Institution to the respondent no. 2 on which the respondent no. 2-District Basic Education Officer, Meerut on 28.11.1998 made an endorsement addressing the respondent no. 4 that approval to the appointment of the petitioner had not been granted and that her name may be deleted from the bill and the bill be resubmitted. 4. The case of the petitioner is that one Sarita Verma was getting her salary from the State fund but she resigned and therefore a substantive vacancy was created and at the time of selection there were only four posts of Assistant Teacher. It is also stated that subsequently by a second impugned order dated 21.11.1998 the appointment of the petitioner was disapproved which was not permissible in view of the provisions of Rule 10(5) (iii) of the Rules, 1978. It is also stated that subsequently by a second impugned order dated 21.11.1998 the appointment of the petitioner was disapproved which was not permissible in view of the provisions of Rule 10(5) (iii) of the Rules, 1978. It is also stated that the vacancy caused by the resignation of Sarita Verma was treated as a reserved vacancy which was not possible being a single vacancy. 5. In the counter affidavit filed on behalf of the respondents it is stated that the petitioner was a general candidate and was selected on the post of Assistant Teacher by the Committee of Management without having regard to the reservation quota as the post in question was reserved for the scheduled caste candidate and no general category candidate could have been appointed on that post. It is also stated that the respondent no. 2-Basic Education Officer while granting permission envisaged that the post of Assistant Teacher would be filled through the reservation quota. The minority status of the Institution has also been denied. 6. I have heard Shri Indra Raj Singh, learned counsel for the petitioner and Shri V.S. Mishra, learned standing counsel for the respondents. 7. The short and undisputed point in the writ petition is that there was one post of Assistant Teacher against which the petitioner was appointed through the process of selection. The sanction letter of the Basic Shiksha Adhikari dated 12.8.1998, Annexure-1 to the writ petition is also in regard to one post which fell vacant on account of the resignation of Sarita Verma. This post according to the respondents was reserved for scheduled caste category candidate and the petitioner belonged to the general category and therefore appointment of the petitioner was illegal and therefore no approval was granted. 8. The case set up by the respondents is absolutely misconceived as the law in this regard has already been settled by the several decisions of the Supreme Court that a single post cannot be reserved. 9. In the case of Dr. Chakradhar Paswan Vs. State of Bihar and others reported in (1988) 2 SCC 214 , the Supreme Court has held in paragraph 17 as under: "It is quite clear after the decision in Devadasan's case that no reservation could be made under Art. 16(4) so as to create monopoly. Otherwise, it would render the guarantee of equal opportunity contained in Arts. 16(1) and 16(2) wholly meaningless and illusory. Otherwise, it would render the guarantee of equal opportunity contained in Arts. 16(1) and 16(2) wholly meaningless and illusory. These principles unmistakably lead us to the conclusion that if there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Art. 16(4), presupposes the availability of at least more than one posts in that cadre." 10. In the case of Chetana Dilip Motghare (Smt) Vs. Bhide Birls' Education Society, Nagpur and others, the Supreme Court has held in paragraph 5 as under: "5.Thus, we are clearly of the view that Dr Chakradhar Paswan case2 holds the field and the decision by the three-Judge Bench dated 17-1-1992 does not lay down any law and is not an authority for holding that the principle of reservation has to be applied in case of even one isolated post also. Apart from the above circumstances in the case before us, the Government of Maharashtra had also issued a circular dated 1-3-1989 after the decision in Dr Chakradhar Paswan case to the effect that the principle of reservation would not apply in the case of an isolated post. In these circumstances, we find no force in this review petition and it is accordingly dismissed." 11. In the case of Post Graduate Institute of Medical Education & Research, Chandigarh Vs. Faculty Association and others, the Supreme Court has held in paragraphs 34 and 37 as under: "34. In a single post cadre, reservation at any point of time on account of rotation of roster is bound to bring about a situation where such single post in the cadre will be kept reserved exclusively for the members of the backward classes and in total exclusion of the general embers of the public. Such total exclusion of general members of the public and cent percent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent. 35. ......... 36. ......... 37. Such total exclusion of general members of the public and cent percent reservation for the backward classes is not permissible within the constitutional frame work. The decisions of this Court to this effect over the decades have been consistent. 35. ......... 36. ......... 37. We, therefore, approve the view taken in Chakradhar'scase that there can not be any reservation in a single post cadre and we do not approve the reasonings in Madhav's case, Brij Lal Thakur's case and Bageswari Prasad's case upholding reservation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education Research can not also sustained. The Review Petition made in civil appeal No. 3175 of 1997 in the case of Post Graduate Institute of Medical Education Research, Chandigarh, is therefore allowed and the judgment dated may 2, 1997 passed in civil Appeal No. 3175 of 1997 is set aside." 12. Even assuming that there were four posts of Assistant Teacher as claimed by the petitioner through the amended paragraph of the writ petition, reservation cannot be applied to four posts and there should be atleast a minimum of five posts before reservation can be applied. This question has also been settled by the Full Bench of this Court in the case of Heera Lal Vs. State of U.P. And others 2010 (3) ESC 2091 (All) (FB). The Full Bench while answering the reference with regard to question no. 1 in paragraph 34 has held as under: "34. In view of the reasons in support of the conclusions drawn herein above our answer to the questions posed are as follows: 1. Question No. 1 is answered in the negative holding that either in cases of promotion or direct recruitment, the rule of reservation providing for 21% reservation to scheduled castes under U.P. Act No. 4 of 1994 as applicable to aided educational institutions cannot be pressed into service where the number of posts in the cadre is less than five." 13. In this view of the matter the impugned orders dated 28.11.1998 and 21.11.1998 cannot survive and are accordingly quashed. The writ petition is allowed. 14. In this view of the matter the impugned orders dated 28.11.1998 and 21.11.1998 cannot survive and are accordingly quashed. The writ petition is allowed. 14. The appointment of the petitioner is held to be valid on the post of Assistant Teacher (Hindi/Sanskrit) and a further direction is issued to the respondents to allow the petitioner to work on the post and pay her salary month to month. 15. However, so far as the arrears of salary is concerned, if the petitioner has not been working on the post of Assistant Teacher she shall not be entitled for the salary for the period for which she has not worked.