Arun Tandon, J.@mdashThese two writ petitions have been filed by the same Petitioner practically for the same relief and, therefore, both the writ petitions have been clubbed together and are being decided under this common judgment.
Facts in short giving rise to the present writ petition are as follows:
2. Petitioner before this Court was appointed on 31.12.1979 as Accounts Clerk in U.P. Paschimi Kshetriya Vikas Nigam Limited, Bareilly. With the closure of the said corporation, the Petitioner was absorbed under an order of the High Court dated 30.9.1992 as Assistant Accountant in the Collectorate at Pilibhit vide order dated 26.2.1994.
3. On the recommendation of the Samta Samiti, 1989, the Government of Uttar Pradesh took a decision to adjust the cadre strength of the posts of Accountants and Assistant Accountants in Government Treasury in various districts throughout the State of Uttar Pradesh in the ratio of 80:20.ln terms of the said decision, it was decided that the increased posts of Accountants after such revision of cadre strength shall be filled in the accordance with the statutory Rules applicable including Government Orders pertaining to the method of appointment on the post in question. It was specifically provided that the appointments may be made on the post of Accountant from those who have worked as Assistant Accountant for at least 3 years. The mode and manner of appointment as Accountant after such fixation of cadre strength in the ratio of i.e. 80:20 was detailed under the Government Order dated 18.6.1999. Certain queries were made, therefore, a clarification was issued under the Government Order dated 25.5.2000. The Government Order dated 25.5.2000 which is on record of the present writ petition provides as follows:
(A) Appointment on the post of Accountant shall be made as per the Statutory Rules and the Government Orders applicable qua appointment on the post of Accountant.
(B) The total number of post as existing on 31.3.1989 alone shall be taken into consideration for the purpose of fixing the ratio of 80:20.
(C) An Assistant Accountant who completed three years of service would be entitled to be appointed as Accountant.
(D) Such method of appointment shall also apply to Assistant Accountant who complete three years of regular service on a date subsequent to the Government Order dated 31.3.1989.
4. It is clear from the Government Order that appointment of Assistant Accountant as Accountant after revision of the cadre strength in the ratio of 80:20 had to be made in accordance with the Statutory Rules and the Government Order which regulated the appointment on the post. It is not in dispute that under the Rules/Government Orders applicable on the relevant date, there was a reservation of 21% in favour of the Scheduled Caste category candidates, on the post to be filled by promotion as well as direct recruitment.
5. It is not in dispute that in Government Treasury at Pilibhit as on the cut of date i.e. 31.3.1999, there were four posts of Accountant and 15 post of Assistant Accountant, the total number of posts would work out to 19. Calculated on that basis the ratio of 80:20 would result in there being 15 posts of Accountant and 4 posts of Assistant Accountant.
6. As against 15 posts of Accountant after applying the reservation of 21 %, 3 posts would be required to be reserved in favour of Scheduled Caste candidates.
7. The District Magistrate, Pilibhit however made an order on 12.11.1999 i.e. after issuance of the relevant Government Order dated 18.6.1999 which was clarified vide Government Order dated 25.5.2000 promoting as many as 16 persons as Accountant. The name of the Petitioner is mentioned at serial No. 16. In the said list only 2 persons belonging to the Scheduled Caste category were so appointed.
8. Respondent No. 4, who is a member of Scheduled Caste on completing 3 years of service in the year 2000 raised an objection to the promotion of the Petitioner as Accountant on the ground that one more post had to be filled by Scheduled Caste category candidate. He being eligible within the quota provided in terms of the clarification order dated 25.5.2000 had to be appointed in preference to the Petitioner. The District Magistrate by means of the impugned order dated 9.10.2006 reverted the Petitioner to the post of Assistant Accountant after recording that the Petitioner had wrongly been appointed against the vacancy reserved for Scheduled Caste candidate.
9. This order was challenged by the Petitioner by means of First Writ Petition No. 36041 of 2006 wherein vide order dated 12.7.2006 an interim direction was issued requiring the District Magistrate to reconsider the grievance of the Petitioner by means of a reasoned speaking order.
10. In compliance with the said order of the High Court, the District Magistrate re-examined the matter. He by means of the order dated 9.1.2006 has held that in terms of the Government Orders referred to above, reservation had to be applied in the matter of appointment as Accountant after restructuring of the cadre in the ratio of 80:20. It has been held that Respondent No. 4 being a member of the Scheduled Caste on completing 3 years as Assistant Accountant was entitled to be appointed against the vacancy available within the quota for Scheduled Caste as Accountant. This subsequent order has been challenged by means of Second Writ Petition No. 13404 of 2007.
11. Challenging the orders so passed, counsel for the Petitioner contends that on the date, Petitioner was appointed as Accountant. Jaiveer Singh, Respondent No. 3 had not completed 3 years of service as Assistant Accountant Therefore, he could not have been considered for appointment on the post of Accountant. He further submits that means of subsequent Government Order dated 10.4.2003, a provision has been made that if any person within the general category has been promoted against the reserved post, the District Magistrate may ask for creation of superannuary post for appointment of the reserved category candidate. He further submits that in the year 2005 a vacancy has been caused on the post of Accountant due to death of K.N Mishra. In any event his claim for appointment as Accountant against subsequent vacancy needs to be considered in a time bound manner as he is due to retire within a span of two years.
12. The contentions so raised on behalf of the Petitioner are opposed by counsel for the Respondent No. 3 as well as Standing Counsel. It is contended that there was absolutely no reason to doubt the applicability of the provision of reservation in the matter of appointment as Accountant after restructuring of the cadre. The District Magistrate was not justified in seeking clarification from the State Government vide order dated 10.4.2003 and for the purpose to forward a list of appointed candidates to the State Government which did not include the name of the Petitioner. Such letter of District Magistrate was totally uncalled for and was so forwarded only to confer uncalled benefit upon the Petitioner. It is stated that in terms of the Government Order dated 25.5.2000, Jaiveer Singh on completing 3 years of service as Accountant become entitled to promotion as Accountant within the vacancies reserved for Scheduled Caste category. Therefore, the order of the District Magistrate may not be interfered with.
13. I have heard counsel for the parties and have examined the records.
14. From simple reading of the Government Order dated 18.6.1999, it is apparent that reservation to the extent of 21% was to be applied even after restructuring of the cadre in the matter of appointment as Accountant, as was recommended by Samta Samiti in the year 1989. The District Magistrate was therefore not justified in promoting the Petitioner as Accountant (the last candidate in the list) who was member of general category against the vacancy which was within the quota of Scheduled Caste. The clarificatory order dated 25.5.2000 specifically provides that such provision for appointment as Accountant would be applicable to the Assistant Accountants who complete 3 years of service even after the cut of date i.e. 31.3.1989. Therefore, against the reserved category post, no appointment of a general category candidate could have been made, yet it has been so done in the facts of the the present case.
15. This Court finds that the District Magistrate had not acted fairly in appointing the Petitioner as Accountant only by suggesting a confusion as to whether reservation would apply in the matter of appointment as Accountant after restructuring of the cadre. The District Magistrate for various reason best known tp him, alongwith his letter dated 9.10.2006 seeking clarification in the matter enclosed a list of persons already appointed as Accountant but excluded the name of the Petitioner from the said list.
16. The mistake has rightly been corrected under the impugned orders.
17. So far as the issue of creation of superannuary post is concerned, this Court may record that the District Magistrate had not asked for such creation of superannuary post from the State Government at any point of time.
18. The claim of Jaiveer Singh for appointment cannot be permitted to suffer by insisting upon the District Magistrate to seek creation of the superannuary post. The impugned orders do not warrant any interference under Article 226 of the Constitution of India.
19. So far as the subsequent vacancy which has been caused due to death of K.N. Mishra is concerned, it is left open to the District Magistrate to consider the claim of the Petitioner for appointment as Accountant strictly in accordance with Government Order and the statutory Rules applicable.
20. In view of the aforesaid, writ petition is dismissed. However the District Magistrate shall consider the claim of the Petitioner for appointment against the vacancy on the post of Accountant strictly in accordance with law preferably within two months from the date a certified copy of this order is filed before him after affording opportunity to all other persons entitled to such consideration.
