Neeraj Kumar Shukla vs Joint Director of Education and Others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the Petitioner and the learned standing counsel.

The dispute relates to the appointment on the post of peon (class IV employee) in Sarvajanik Inter College Shiv Mangal Nagar Manethu Belawal, Allahabad governed by the provisions of the U. P. Intermediate Education Act, 1921 and the Regulations framed thereunder. It is undisputed that the provisions of U. P. Act No. 4 of 1994 in relation to reservation applies to such posts.

Sri R.K. Ojha learned Counsel for the Petitioner contends that the impugned order dated 18.11.2002 has been passed without giving any notice or opportunity to the Petitioner and even otherwise proceeds on erroneous assumptions of law and fact. He submits that the appointment of the Petitioner and his approval on 12.11.2002 does not suffer from any infirmity.

A counter-affidavit has been filed in which it has been stated that the post should have been filled up by a Scheduled Caste category candidate and therefore the appointment and approval of the Petitioner was rightly recalled.

The writ petition was presented and the following interim order was passed on 20.3.2003.

The Respondents prays for and are granted six weeks further time to file counter-affidavit. The Petitioner shall have two weeks thereafter to file rejoinder-affidavit.

Meanwhile the operation of the impugned order dated 18.11.2002 shall remain stayed and status quo on the post of peon on which the Petitioner had been working shall be maintained.

Sri Ojha contends that it is undisputed that there are six posts of peons (class IV employees) in the institution. Out of these, four posts were occupied by O.B.C. category candidates, and two posts by General category candidates. One of the General category candidates Sri Raj Murti Misra retired and against the said post the Petitioner came to be selected and appointed by the Principal which was approved by the District Inspector of Schools on 12.11.2002. This order was reviewed on 18.11.2002 on the ground that no candidate of Scheduled Caste category has been appointed and since the provision of reservation is applicable therefore out of six posts one post has to be offered to the Scheduled Caste category candidate.

On the aforesaid undisputed facts, it is contended that four reserved category candidates of the O.B.C. had already been appointed and therefore the reservation quota had already been exceeded by more than 50 % quota as held in the case of Indira Sawhney Vs. Union of India, If any further reservation to any category is extended, it would violate the law declared by the Apex Court.

Apart from the aforesaid fact the post fell vacant and was filled up by appointing the Petitioner after following the procedure and the appointment was approved.

During the pendency of the writ petition another post fell vacant and Vinod Kumar has been appointed by giving the benefit of reservation under the Scheduled Caste category. Thus, one post by reservation has already been filled up and therefore in view of the U. P. Act No. 4 of 1994, 21% reservation in favour of the Scheduled Caste candidates is saturated.

Accordingly in such circumstances it will not be justifiable to dislodge the Petitioner who was appointed on the post of Peon and for which approval was granted on 12.11.2000. The order dated 18.11.2002, passed by the District Inspector of School is also in violation of principles of natural justice as the same has been passed without giving opportunity and notice to the Petitioner.

The writ petition is therefore allowed. The impugned order dated 18.11.2002 is quashed. The Petitioner shall be entitled to receive salary and continue on the post of Peon (class IV). The Petitioner shall also be entitled for all consequential benefits.