- (1.) R. H. Zaidi, J. In the present petition petitioner prayed for a writ order or direction in the nature of certiorari quashing the orders dated 10-1-1992,24-8-1991,14-5-1991,27-5-1989, 30-12-1988 and 28-10-1988 and further for a writ, in the nature of mandamus commanding the respondent not to interfere with he working of the petitioner as Assistant teacher even after 30-6-1992 and to treat his in continuous service. He also prayed for a direction to the respondents not to fill up the post on which he was working since 29-8- 1988.
(2.) IT was stated that in the year 1988 two posts in question were sanctioned by the Assistant Director of Gorkahpur Which were advertised by the management, specifically mentioning that preference shall be given to the Scheduled Caste candidates and in the event of non availability of qualified candidate they will be filled up the general candidates. He possessed the requisite qualifications, therefore, applied for his appointment and appeared before the selection committee on 25-9-1988. Since no suitable and qualified candidate belonging to the Scheduled Caste was available, therefore, the selec tion committee selected Shri Akhilesh Dwivedi and the petitioner for appoint ment on the said post. Shri Akhilesh Dwivedi was placed on serial No. 1 and petitioner on serial No. 2 in the selected list. Vide resolution dated 28-9-1988 the selection committee resolved to appoint the petitioner and Shri Akhilesh Dwiveji on the post in question. On 29-9-1988 a letter of appointment was also issued in favour of the petitioner in compliance where of the petitioner joined his duties on the same date. The papers relating to the selection and appointment of the petitioner and Shri Akhilesh Kumar Dwivedi were submitted for approval to the Basic Shikbha Adhikari. Vide order dated 28-10-1988 the Basic Shiksha Adhikari sought clarification from the manager of the college regarding the appointment of the candidate belong ing to the Scheduled Caste- The said letter was issued on the basis of the complaint of the members of Scheduled Caste community. Vide order dated 3-11-1988 the committee of management submitted its clarification before Basic Shiksha Adhikari, to the effect, that no suitable and qualified candidate belonging to Scheduled Caste was available consequently, the candidates belonging to general candidates were appointed. However, the Basic Shiksha Adhikari insisted upon the management to readvertise the post on the ground that they were reserved for Scheduled Caste candidates by his letter dated 30-8-1988. In the meanwhile Shri Akhilesh Kumar Dwivedi was selected for appointed in railways, the management committee, therefore, vide its resolu tion dated 26-3-1989 resolved to appoint Shri Subhash Chand in place of Akhilesh Kumar Dwivedi and to re-advertise the other posts. Consequently, the Basic Shiksha Adhikari approved the appointment of the petitioner but for period of six months only vide his order dated 14-5-1991 which was extend ed till the end of Session, 1992 i. e. 30-6-1992 but not thereafter, therefore, petitioner filed the writ petition for the above noted reliefs. In the counter affidavit filed on behalf of the Basic Shiksha Adhikari it was stated that the post in question was reserved for the Scheduled Caste candidate and only the candidates belonging to the schedule caste could be appointed on the said post, none else. The appointment of the petitioner a candidate belonging to the general category was as such illegal and invalid. Therefore, direction to readvertise the post was rightly issued. It has also been stated that the petitioner cannot be adjusted in the vacancy caused in the said posts had to be readvertised and appointment could be made after holding selection in accordance with law on the post No. 1. Since no appoint ment in accordance with law was made consequently, approval for the appoint ment of petitioner was made only on ad hoc basis and on the basis of the said approval he cannot claim the post in question as matter of right. It was also stated that the petitioner by misstating and suppressing material facts has succeeded in obtaining ex parte interim order in his favour which was liable to be vacated and the writ petition filed by him deserved to be dismissed. The case of the Basic Shiksha Adhikari was, in brief, that the moment Akhilesh Kumar Dwivedi joined the post selection process came to an end and on his vacation the said posts had to be re-advertised. The petitioner cannot claim the said post on the basis of the selection on the second post which was reserved for Scheduled Caste and was not entitled to for relief in the present petition.
(3.) I have heard learned counsel for the parties and carefully gone through the record of the case. It is not disputed that the post in question was reserved for a candidate belonging to the Scheduled Caste, therefore, on the said post the petitioner could not be appointed. The petitioner simply asserted that since qualified and suitable Scheduled Caste candidate was not available, therefore, he was rightly appointed on the said post by the Committee of Management. In view of several decisions of this court and Hon'ble Supreme Court to the effect that on the post reserved for Scheduled Caste and Scheduled Tribe, can didate belonging to the general category could not be appointed, therefore, the contention of the petitioner for his appointment on the post in question can not be accepted. Learned counsel for the petitioner in the alternative submitted that the post held by Sri Akhilesh Kumar Dwivedi fell vacant as he was selected for appointment in railways and has already joined there, therefore, the petitioner was rightly appointed on the said post and he was entitled to be permitted to continue to hold the said post.;