- (1.) HEARD Sri R. C. Tewari, learned counsel for the petitioner and the learned standing counsel for opposite party Nos. 1, 2 and 3.
(2.) THE case starts with an advertisement, which was issued on 4-10-1998 for filling up three posts of Assistant Teachers B.T.C. in Arya Kanya Pathshala, Hardoi, copy of the advertisement is annexure-1 to this writ peti tion. THE case of the petitioner is that he along with Smt. Rachna Agnihotry, were selected against the two general category posts. It may be mentioned here that out of the three posts mentioned above, one post was reserved for SC/ST and the remaining two posts for gen eral category candidate. On 10-7-1999, the Manager of the College sought approval from the District Inspector of Schools. THE Dis trict Inspector of Schools vide his letter dated 12-7-1999 contained in annexure-4 to the writ petition, accorded his approval to the appoint ment of the petitioner and Smt. Rachna Agnihotry in B.T.C. pay scale with the rider that if any irregularity would be found in the appointment, then the appointment would be cancelled. It is strange note by the District Inspector of Schools because he should have granted approval only after ascertaining himself that there was no irregularity for the ap pointment. In any view of the matter, his approval marked a finality to the selection pro cess and accordingly appointment letters were, issued on 12-7-1999, itself, which is annexure-5 to this writ petition. On 13-7-1999, the petitioner joined the post as Assistant Teacher in the college in question. For some reason on 7-8-1999, opposite party No. 2 the Joint Accounts Officer, Directorate of Education, U.P., Allahabad, directed the District Inspec tor of Schools to stop payment of salary and asked for entire file of approval of the petitioner and Smt. Rachna Agnihotri. On 2-12-1999, the opposite party No. 2 himself di rected the District Inspector of Schools to make payment to the petitioner as well as Km. Rachna Agnihotri but the salary was not paid. When the salary was not paid even after mak ing the representation dated 21-12-1999, the writ petition was filed before this Court be ing W.P. No. 687(SS) 2000 Km. Rachna Agnihotri v. Director of Education, U.P., Allahabad, in which interim order was passed to pay salary to Km. Rachna Agnihotri. In compliance of this order, Km. Rachna Agnihotri was paid salary but the petitioner could not be paid because she had not pre ferred any writ petition at that time. THE present writ petition was filed by the petitioner Smt. Sita Trivedi against non payment of sal ary. On 27- 3-2000, the following order was passed:- "Heard the learned counsel for the peti tioner and the learned standing counsel who has accepted notice on behalf of opposite par ties Nos. 1 to 3. Issue notice to opposite party No. 4. List this petition along with the record of writ petition No. 687 (SS) 2000 in the week commencing 01st May, 2000." "In the meantime, the opposite parties are directed to pay salary to the petitioner in ac cordance with the order dated 2-12-99, a copy of which has been annexed as Annexure- No. 7 to the writ petition or show cause to this Court." It may be noted that the Court had di rected the opposite parties to pay salary or to show- cause. On 20-4-2000 opposite party No. 3 passed an order, in which the present District Inspector of Schools reviewed its earlier or der of his predecessor dated 12-7-1999 and rejected the claim of the petitioner for pay ment of salary. This order rejection was chal lenged by way of amendment, which was moved on May 4, 2000. This Court vide its order dated 18-9-2001 passed the following order allowing the amendment application :- "Heard counsel for the petitioner and the learned standing counsel. By this application the petitioner has prayed for adding para graphs 1 A, 14A to 14H and also grounds from D-l to D-5. Certain amendment has also been prayed for in the relief clause. The amend ment application is allowed. The petitioner is permitted to incorporate the amendment within 24 hours. Put up this matter day after tomorrow."
(3.) IN the reasons given by District INspec tor of Schools vide letter dated 20-4-2000 it was held that while issuing the advertisement and giving appointment to the petitioner, the reservation rule was not followed. This Court on 20-9-2001, passed the interim order by which opposite parties were directed to pay the regular salary to the petitioner and the rejection order dated 20-4-2000 was stayed. For convenience the order is quoted below:- "Heard counsel for the petitioner and learned standing counsel." "By order dated 20th April, 2000, the Dis trict INspector of Schools has disapproved the payment of salary to the petitioner. The prin cipal reason given for disapproving the petitioner's payment of salary is that three posts which have fallen vacant are to be filled up by reserve category and on one post one Smt. Rachna Agnihotri was approved for pay ment. IN paragraph 14C of the writ petition petitioner has categorically stated that against 8 sanctioned posts, 5 Assistant Teachers are working since before the application of res ervation rules in which one belongs to sched uled caste, two belong to O.B.C. and two be long to general class category. Counsel for the petitioner has submitted that under the U.P. Act No. 4 of 1994, if the earlier teachers belonging to reserve category are taken into consideration, all posts out of three which have fallen vacant will not go in reserve cat egory and petitioner's appointment cannot be said to be on a post meant to be filled up by reserve category candidate. The petitioner's appointment was earlier approved by the Dis trict INspector of Schools by order dated 19th July, 1999 and at no point of time the order approving the appointment has been can celled. IN view of the above the order dated 20-4-2000 shall remain stayed and the respon dents are directed to pay current salary to the petitioner as Assistant Teacher in Arya Kanya Pathshala INter College, Hardoi and continue to pay salary regularly." A stay vacation application was moved by the State along with the supplementary counter-affidavit to the amended writ petition. It may also be noted here that the counter-affidavit to the original writ petition was filed, which is on record. This stay vacation appli cation was also rejected on 11-7-2002 by this Court and the following order was passed:- "Vide order dated 20-9-2001, this Court had passed an interim order staying the operation of the order dated 20-4-2000 and fur ther directed the respondents to pay current salary to the petitioner as assistant teacher in Arya Kanya Pathshala Inter College, Hardoi, and continue to pay salary regularly. The aforesaid order was passed on the basis that there are eight sanctioned post of assistant teachers in the aforesaid institution and five assistant teachers are working before the en forcement of Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. The aforesaid Act came into force on 11-12-1993. Thereafter, three vacancies oc curred after the enforcement of the aforesaid Act, in which the petitioner was selected. His appointment was also approved by the Dis trict Inspector of Schools. The petitioner was not being paid salary on the ground that her appointment is against a reserved post. While passing the interim order the Court, came prima facie to the conclusion that since three teachers belonging to reserved category are already working since before the reservation, if any, can only be of one post and not all the three posts. This fact regarding working of three teachers belonging to reserved category have not been disputed in the affidavit, filed in support of the application for vacating the interim order. In this view of the matter, I am not inclined to vacate the interim order dated 20-9-2001. The application for vacating the interim order is hereby rejected and the order dated 20-9-2001 is confirmed.";