JUDGMENT M.C. Jain, J.
1. This special appeal by Basic Shiksha Adhikari, Allahabad and 17.P. Board of Basic Education, Allahabad is directed against the judgement dated 24.11.2003 passed in Civil Misc. Writ Petition No. 14808 of 1996 (Gulerana and Anr. v. State of U.P. and Ors.) which was decided together with Civil Misc. Writ Petition No. 31105 of 1996 (Noorulhuda Ansari and Ors. v. State of U.P. and Ors.). The respondents are Smt. Gulerana and Km. Nahid Anzum who were petitioners in Civil Misc. Writ Petition No. 14808 of 1996. So far as they are concerned, the Hon'ble Single Judge in Civil Misc. Writ Petition No. 14808 of 1996 directed the respondents to issue appointment letters in their favour as Urdu Teachers within two months from the date of order with all consequential benefits alongwith other persons selected with them.
2. It would be proper to give resume of relevant facts leading to this appeal. An advertisement was published by the appellants ( respondents in writ petition) in newspaper dated 5.8.1995 inviting applications "for selection to the post of Assistant Teachers/Primary Urdu Teachers. The selection was to be made according to U.P. Basic (Education) Teachers Service Rules, 1981 ( in short 'Rules of 1981'). The Government issued a Government Order No. 2709 dated 21.7.1995 providing procedure for appointment of Urdu Teachers in schools run by the U.P. Basic Shiksha Parishad so as to implement the decision for appointing 5 000 Urdu Teachers in the State. It was to supplement the provisions of Rules of 1981 whereunder the appointments were to be made, though the said rules do not contain any specific provision regarding Urdu Teachers. Clause 9,10 and 12 of Government Order dated 21.7.1995 read as under:
9- fyf[kr ijh{kk ds vad vkSj xq.koÙkk vad tksM+dj o"kkZuqdze esa esfjV lwph cukbZ tk;-
10- esfjV lwph esa ls mrus vH;FkhZ fu;qfDr ds fy;s p;u lfefr ds lkeus fu/kkZfjr frfFk dks vkeaf=r fd;s tkW; tks fjDr inksa dh vko';drk dh iwfrZ djrs gksa- ,sls vH;fFkZ;ksa ds leLr ewy izek.k i=ksa dh tkWap dh tk;sxh rRi'pkr fu;qfDr i= fuxZr fd;s tkW;- mnkgj.k ds fy, ;fn fdlh tuin esa 50 fjDr in Hkjs tkus gSa rc 50 vH;fFkZ;ksa dks gh muds leLr ewy izek.k i=ksa dh tkWap djus ds fy, cqyk;k tk;sxk-
12- m0 iz0 csfld f'k{kk v/;kid lsok fu;ekoyh] 1981 ds fu;e&17¼4½ ds vuqlkj izf'kf{kr vH;fFkZ;ksa ds laca/k esa gh o"kkZuqdze dk /;ku esa j[kk tk;sxk- vizf'kf{kr vH;fFkZ;ksa dk p;u izf'kf{kr vH;FkhZ miyC/k u [email protected] u ik;s tkus dh n'kk esa fd;k tkuk pkfg,- vizf'kf{kr vH;fFkZ;ksa dk p;u vFkkZr fyf[kr ijh{kk rFkk xq.koÙkk vadksa dks tksM+us ds vk/kkj ij fd;k tk;sxk rFkk blesa o"kkZuqdze ykxw ugha gksxk- vizf'kf{kr Js.kh ds p;fur vH;fFkZ;ksa dks vizf'kf{kr osrueku ns; gksxk- xq.koÙkk vadksa ds fu/kkZj.k ds fo"k; esa m0 iz0 csfld f'k{kk ¼v/;kid½ lsok fu;ekoyh] 1981 ds fu;e&14 ¼4½ ds ifjf'k"V esa fLFkfr Li"V dh x;h gS] mlh ds vuqlkj xq.koÙkk vad tksM+s tk;-
3. The written test was held on 11.9.1995 in which two respondents participated as OBC candidates. It is not disputed that they possessed requisite qualifications. Although the advertisement did not mention the number of posts but it is not disputed that there were 75 posts. The result was declared on 24.9.1995. 73 candidates were shown successful and were called for verification of their original testimonials as per Clause 10 of the G.O. dated 21.7.1995 reproduced above. The Roll Nos. of respondents were 2069 and 2037 and they were included in the list of the successful candidates. They were called personally on 27.9.1995 and on verification the selection committee approved their certificates. The Basic Shiksha Adhikari issued appointment letters to 51 candidates instead of 73. The certificates of two candidates were found to be fake. Thus, their selection was cancelled and only 49 candidates were issued appointment orders and postings. Rest of the posts were left vacant, although the petitioners were placed at Serial Nos. 36 ( Roll No. 2069- marks obtained 117) and 37 ( Roll No. 2037-marked obtained 106) in the merit list.
4. We have heard Sri Pradeep Kumar counsel for the appellants and Sri M.A. Qadeer for the respondents.
5. The contention of the appellants before Hon'ble Single Judge through counter affidavit filed on 7.3.2002 by one Ramesh Singh was that the marks of the petitioners in the said merit list were less and due to this reason they could not be selected. The petitioners stood lower in the merit list considered on the criterion of year of their training as OBC candidates. The petitioners were trainees of 1990. It was contended that the vacancies were 75 ( 39 General + 22OBC + 14SC/ST) but 73 persons were called before Selection Committee. It was also their contention that due to higher marks of the petitioners in the select list, they were added in the general category (instead of OBC list). In general category list, the petitioner Gulerana was at Serial No. 36 ( aggregate marks 117) and Km. Nahid Anzum was serial No. 37 (aggregate marks 106). In general category list only 29 candidates had been selected. In para 12 of the counter affidavit filed in the writ petition by Ramesh Singh, it was stated that after appointment of 51 candidates, no post was vacant.
6. To render the picture clear, by an order dated 29.8.2006 passed in special appeal, the appellants were required to file supplementary affidavit sworn by Basic Shiksha Adhikari, Allahabad, clarifying the position as to how many candidates were appointed in each category i.e. general, OBC, SC/ST, Handicapped etc. The Basis Shiksha Adhikari M.P. Singh filed a supplementary affidavit in appeal. Its para 8 reads as under:
8. That so far as the category wise appointment is concerned, it is submitted that 30 candidates were appointed in General Category including one Handicapped and one Ex-Army Man. 21 candidates were appointed in O.B.C. Category and no candidates were appointed in SC/ST category as not a single application was made available from the candidates of said category. Total 51 candidates were appointed in the categories mentioned below.
7. The respondents have filed a supplementary counter affidavit in appeal against the aforesaid supplementary affidavit filed by Basic Shiksha Adhikari M.P. Singh. In para 6 hereof it is averred that out of 51 candidates, the appointments of two candidates, namely, Kalemuddin and Tasnim were cancelled. Thus f only 49 candidates were issued appointment letters. 5 persons out of 49 selected candidates did not join. Their names have been given as 1. Smt. Amina Khatoon at serial No. 2 in general category-1984 trainee-117 marks, 2. Nihaluddin at serial No. 13 in general category-1987 trainee-117 marks; 3. Kamila Farzana at serial No. 21 in general category-1987 trainee-105.7 marks, 4. Smt. Neelam Nigar at serial No. 22 in general category-1989 trainee-101.4 marks and 5. Saleha Khatoon at serial No. 21 in OBC category-1989 trainee-100.7 marks. Thus out of 51, 5 candidates did not join and against the cancellation of appointment of two candidates, one Kulsum Bano (serial No. 30 in general category-1990 trainee-113 marks has been appointed and is working.
8. The Hon'ble Single Judge observed and we also find several discrepancies and interpolations in the record. Seema Parveen of general category- trainee of 1985 secured only 96 marks but was placed at serial No. 3 whereas Raisa Azaz, Amir Farzana, Tahjeem Fatima and Abdul Wahid also trained in 1985 were placed below Seema Parvin, though they secured 115.5, 106, 99.3 and 98.8 marks. The date of birth of Seema Parvin was 15.4,1964 and, as we said, she secured only 96 marks. The date of birth of Raisa Azaz was 12.12.1954 and even on securing 115.5 marks she was placed below Seema Parvin. It cannot be said that date of birth was criterion for seniority. It is gathered from the rules that selection committee was to prepare the list of candidates who had qualified in the written examination in such a manner that candidates who had passed requisite training course earlier in point of time were to be placed higher that those who had passed the said training course later. The candidates who had passed the training course in a particular year were to be appointed in accordance with aggregate marks obtained by them in written examination and quality points. If two or more candidates obtained equal marks, the candidate senior in age was to be placed higher in seniority list.
9. Subsequent to the filing of the supplementary counter affidavit to the supplementary affidavit of Basic Shiksha Adhikari M.P. Singh, the counsel for the appellants sought time to file rejoinder affidavit. To impart substantial justice, time for the same was granted upto 15.9.2006 under order dated 8.9.2006. A specific direction was made that rejoinder affidavit would be sworn by the Basic Shiksha Adhikari, clarifying as to who are the 51 candidates who have allegedly been appointed to whom salary is being paid. The affidavit was also to indicate individual date(s) from which the salary was being paid to those 51 candidates.
10. When the case came on board on 15.9.2006, the order dated 8.9.2006 was found not to have been complied with. Instead, an application was made from the side of appellants with the affidavit of M.P. Singh-Basic Shiksha Adhikari that in compliance of order dated 8.9.2006, he proceeded to collect relevant material for filing the reply to the supplementary counter affidavit of the respondents. However, by order dated 13.9.2006 passed by Special Secretary, Basic Education, Government of U.P., Lucknow, he had been transferred from the present post to Lucknow with immediate effect and he had been directed to join at the new place of posting at the pain of disciplinary action against him in case of non-compliance. It was further stated in affidavit that he was relieved in absentia on 13.9.2006. The copies of the transfer and relieving orders were annexed with the affidavit. This was the excuse put forth for not complying with order dated 8.9.2006. It is strange that to thwart compliance of order dated 8.9.2006, the Special Secretary, Basic Education, U.P. Lucknow transferred Basic Shiksha Adhikari, Allahabad. Such action of Special Secretary was seemingly designed to screen the reality from coming before the Court. The truth was attempted to be veiled. Still, we granted further time to the counsel for the appellants to comply with our order dated 8.9.2006 in the shape of affidavit to be sworn by the new incumbent of the post of Basic Shiksha Adhikari or any one officiating on that post.
11. The new incumbent, namely, Dharmendra Kumar Saxena, Basic Shiksha Adhikari, Allahabad came up with affidavit with certain annexures in compliance of order dated 8.9.2006. Para 4 of the same reads as under:
4. That as stated earlier by the predecessor of the deponent in his Supplementary Affidavit dated 06.09.2006 the deponent humbly submit that the appointments were given to all the 51 candidates on the basis of merit list prepared strictly in accordance with the provisions of Government Order dated 21.07.1995 and appointments letter with their place of posting was issued immediately after the selection of the candidates. 30 candidates of General Category (including one physically handicapped candidate and one Ex-Army candidate) i.e. from serial No. l to 27 and serial No. 35 (candidate belong to O.B.C. but due to his higher quality point marks he was added in the merit of General Candidate). The candidates shown to serial No. 1 to 21 from the merit of list of O.B.C. Category were provided appointment. However, during verification of original testimonials of the selected candidates, the certificate of the two candidates ( i.e. serial No. 27 and serial No. 35 from General Category) were found forged therefore, the candidature were cancelled and in place thereof two candidates'( i.e. serial No. 28 and 29) were provided appointment and respective appointment letter were also issued in their favour.
12. As regards para 6 of supplementary counter affidavit filed by respondents (wherein it was averred that out of 51 candidates, appointments of two candidates, namely, Kamaruddin and Tasnim were cancelled. Thus only 49 candidates were issued appointment letters. Five persons our of 49 selected candidates did not join whose names and other details were also given) reproduced at page No. 4 of this judgement, reply made by the -appellants in para 12 of the affidavit of Dharmendra Kumar Saxena is that averments made in para-6 of the supplementary affidavit are categorically denied. The facts stated therein are totally baseless and incorrect.
13. The counsel for the respondents contended that the order passed by this Court (on 8.9.2006) has not been complied with by the appellants and ambiguous facts have been stated in the supplementary rejoinder affidavit of Dharmendra Kumar Saxena. On his request two days' time was allowed to file reply under order dated 6.10.2006.
14. Reply affidavit sworn by one of the respondents Smt. Gulerana is that the appellants were required to call such number of candidates for verification of original documents as were equal to the posts to be Filled. Admittedly, 75 candidates were invited for the said verification. Out of them, two absented. Thus 73 candidates including two respondents appeared and their papers were verified and found in proper order. The appellants were required to give appointment to all such 73 candidates. It has also been averred that selection of two candidates, namely, Sagir Ahmad at Serial No. 27 and Kalimuddin at Serial No. 35 (general category) had been cancelled. Thus, only 49 candidates were issued appointment letters. Out of them, 5 candidates did not join as detailed earlier in supplementary affidavit dated 8.9.2006.
15. The original record is before us. It shows that list of 37 candidates ( general category), 22 candidates ( O.B.C. category), one candidate ( ex-armyman category) and one candidate (physically handicapped category) had been prepared. The learned Counsel for the appellants argued that 30 candidates were appointed in general category including one ex-armyman and one physically handicapped. 21 candidates were appointed in O.B.C. category and no candidate was appointed in SC/ST category as not a single applicant of this category was available. He also urged that 10 posts were reserved for departmental promotees. Now, this theory of 10 posts being reserved for departmental promotees is wholly without any foundation. Accepting the contention that 14 posts could not be filled up as they were meant for SC/ST category and not a single applicant of this category was available, the remaining 61 candidates ought to have been issued appointment letters. The name of respondent Gulerana is shown at serial No. 36 and that of Nahid Anzum at serial No. 37 in general category, though they belonged to O.B.C. category. The reason of there being shown in general category was that due to their higher marks, they were added in the general category instead of O.B.C. The marks obtained by Gulerana were 117 and aggregate marks obtained by Nahid Anzum was 106. Both of them were 1990 trainees.
16. Annexure CA-1 to the affidavit sworn by Gulerana is a certificate issued by the Principal, Mazidia Islamia Inter College, Allahabad on 12.9.2006 to the effect that Km. Amina Khatoon daughter of Barkatullah (1984 trainee with aggregate marks 117 at serial No. 2 of selected candidates of general category Nihaluddin son of Anwar Ali (1987 trainee with 117.8 aggregate marks at serial No. 13 of selected candidates of general category) and Kamila Farzana daughter of Mohinuddin Man (1989 trainee with aggregate marks 105.7 at serial No. 21 of selected candidates of general category) were actually working as assistant teachers in the said institution who were also being paid salary every month through District Inspector of Schools, Allahabad. Thus, there is concrete proof of these three candidates having not been appointed. Contrary fact has been averred from the side of the appellants that they were also issued appointment letters and were working as Urdu teachers. Not only this, Saleha Khatoon at serial No. 21 of the list of selected candidates-O.B.C. category-1989 trainee with 100.7 aggregate marks has herself filed affidavit which is Annexure CA-2 to the affidavit of Gulerana. She has emphatically sworn that she got appointment letter 31.10.1995, but she did not join service. Nor was she presently doing service, because after getting married she became house lady. This way, that post also remained vacant. Again a contrary fact has been sworn by the appellants through the affidavit of Dharmendra Kumar Saxena, present Basic Shiksha Adhikari, Allahabad that she was issued appointment letter on 27.10.1995 and was being paid salary since then.
17. We note that with his affidavit, Dharmendra Kumar Saxena, Basic Shiksha Adhikari, Allahabad has annexed the list of total 51 candidates ( Annexure SRA-III). It is said to be a chart showing the date of appointment, the date of joining, place of posting and the date from which salary is being paid to each of them. On sedulous scanning, we find that the said chart is a dressed up and adulterated account presented by the appellants to screen the reality and to present a distorted picture to mislead the Court. At Serial No. 2 is shown the name of Amina Khatoon. Her date of appointment has been shown as 30.9.1995. The columns of her joining and the date from which the salary is being paid to her are blank. It would be remembered that she is the same candidate who, as per Annexure CA-I of the affidavit of Gulerana, is actually working as primary assistant teacher in Mazidia Islamia, Inter College, Allahabad. At serial No. 13 of the SRA-III is the name of Nihaluddin. His date of appointment is also shown as 30.9.1995 but the columns of joining and payment of salary are blank. He is the same candidate who is also working as primary assistant teacher in Mazidia Islamia, Inter College, Allahabad as per CA-I to the affidavit of Gulerana. At serial No. 21 of the list of general category candidates is shown the name of Kamla Farzana whose date of appointment is shown as 25.3.1996. Her date of joining is shown as 26.3.1996 and the date of payment of salary is shown as 26.3.1996. It also runs counter to the CA-1 to the affidavit of Gulerana, according to which, she is also working as primary assistant teacher in Mazidia Islamia, Inter College, Allahabad.
18. Moreover, the name of Saleha Khatoon is shown at serial No. 21 of the selected candidates as per SRA-III. The date of her appointment is shown as 30.9.1995 and date of her joining is shown as 27.10.1995. The salary is shown as being paid to her w.e.f. 27.10.1995. This is obviously wrong, because CA-3 to the affidavit of Gulerana is the appointment letter issued to her by District Basic Shiksha Adhikari, Allahabad. It is dated 31.10.1005. It spills beyond comprehension as to how she could join on 27.10.1995 i.e. even before appointment letter was issued to her. It would be recalled that she herself has filed an affidavit CA-2 to the affidavit of Gulerana that appointment letter was issued to her on 31.10.1995 for the post of Assistant Urdu Teacher by Basic Shiksha Adhikari but she never joined the service because after being married she became house lady.
19. As we mentioned earlier, Gulerana placed at Serial No. 36 in general category-1990 trainee obtained 117 aggregate marks. According to the appellants, the last candidate appointed in general category is Tasnim Ashfi at serial No. 29 of list of general category as per original record. This candidate is also 1990 trainee and obtained 120.9 aggregate marks. When it is established that Amina Khatoon at serial No. 2, Nihaluddin at serial No. 13 and Kamla Farzana at serial No. 21 in general category did not join and were actually working in another institution, vacancies were available for the appointments of two respondents, namely, Gulerana shown at serial No. 36 in the general list-1990 trainee with 117 aggregate marks and Nahid Anzum at serial No. 37 in general category-1990 trainee with 106 aggregate marks. Further one vacancy was obviously available because Saleha Khatoon at serial No. 21 of O.B.C. category-1990 trainee with 100.7 aggregate marks also did not join as we indicated earlier. We also mention here before proceeding further that as per the own case of the appellants, the candidate at serial No. 29 of general category list, namely, Tasnim Ashfi with 120.9 aggregate marks was also 1990 trainee and all others after her from serial No. 30 to 37 are 1990 trainees. In O.B.C. category also, Saleha Khatoon at serial No. 21 with 100.7 aggregate marks ( who did not join) was the last 1989 trainee and after her are 1990 trainees.
20. We will demonstrate the availability of vacancies for the respondents Gulerana and Nahid Anzum by a little discussion. It is settled principle that the candidates of reserved category who have competed on merit with general category candidates have to be adjusted according to their merit in general category and they are not to be treated in reserved category. In the present case, it was the own case of the appellants that since two respondents had obtained high marks, they were kept in general category list instead of O.B.C. category. It may be stated at the risk of repetition that their names appear at serial No. 36 (Gulerana) and serial No. 37 (Nahid Anzum) in the selected list. Gulerana obtained 117 marks and Nahid Anzum obtained 106 marks. It is an admitted fact that the selection of Sagir Ahmad at serial No. 27 of the general category-1990 trainee with 126.8 marks and of Kalimuddin at serial No. 35 in general category-1990 trainee with 128 marks had been cancelled. It is also not in dispute that Nurul Huda Ansari at serial No. 22 of O.B.C. category-1990 trainee with 112.2 marks did not join as he was employed elsewhere.
21. Leaving aside irrelevancy and shorn of superficialities, the situation boils down to this that only 20 candidates were appointed in O.B.C. category, 1 ex-armyman, 1 physically handicapped person and 25 candidates in general category. The conclusion is inescapable that the list of general candidates showing 28 persons as appointed ( as per Annexure-SRA-III) is incorrect. The list showing appointment of 21 candidates in O.B.C. category is also incorrect and is excessive by one candidate. Actually, it comes to the fore that the appellants appointed only 47 candidates (25 in general category, 20 in O.B.C. category, 1 ex-armyman and I physically handicapped), whereas, according to them, they could appoint 51 candidates. This contention is also incorrect, because there could be no question of deducting ten posts for so-called promotees. As a matter of fact, going by their case that 14 posts out of 75 vacancies could not be filled up as they were meant for SC/ST candidates, all the rest i.e. 61 posts Could and should have been filled up from amongst selected candidates. As we said, those candidates of O.B.C. category who competed on merit with general category candidates were to be adjusted in general category according to their merit. Actually, the appellants them-' placed three O.B.C. candidates at serial No. 35 (Kalimuddin whose selection was cancelled), at serial No. 36 (Gulerana-respondent in appeal) and No. 37 ( Nahid Anzum-another respondent in appeal) in general category in selected list.
22. Now, going by the appellants' contention that Tasnim Ashfi at serial No. 29 of general category-1990 trainee with 120.9 marks was the last candidate appointed under general category, the adjustment was to be made for the four vacancies available in general category (against Amina Khatoon at serial No. 2, against Nihaluddin at serial No. 13, against Kamla Farzana at serial No. 21 and against Sagir Ahmad at serial No. 27 whose selection was cancelled},Moreover, there was one vacancy against Saleha Khatoon at serial No. 21 of O.B.C. category who has filed affidavit that having received appointment letter dated 31.10.1995 she did not join at all, because she became house lady on getting married. All the candidates shown at serial No. 30 to 37 in general category list are 1990 trainees. Kulsum Bano at serial No. 30 obtained 113 marks but Gulerana at serial No. 36 (respondent No. l in this appeal) obtained 117 marks. Therefore, she is required to be placed after Tasnim Ashfi who obtained 120.9 marks. This way, one of the five posts available, has to go to her. It may be so said that against Amina Khatoon at serial No. 2, she (Gulerana) became entitled to be appointed after Tasnim Ashfi shown at serial No. 29 in the selected list of general candidates. Then Kulsum Bano shown at serial No. 30 of the selected candidates with 113 marks could get that post which remained vacant because of Nihaluddin at serial No. 13 having not joined. Daraksha Tehra show at serial No. 31 of general category with 112.7 marks became entitled to be adjusted against Kamla Farzana at serial No. 21 of general category. Then Mohd. Hashim Farooqii at serial No. 32 with 108.2 marks became entitled to be adjusted against Sagir Ahmad at serial No. 27 of general category whose selection was cancelled. Respondent Nahid Anzum at serial No. 37 with 106 marks became entitled against 1989 Trainee Saleha Khatoon shown at serial No. 21 in O.B.C. list of selected candidates who did not join at all. We should point out that Rashida Bano at serial No. 33 shown in general list obtained 105.2 marks, Nasiba Afroz at serial No. 34 obtained 104.6 marks and appointment of Kalimuddin at serial No. 35 was cancelled. Thus, both respondents-Gulerana and Nahid Anzum ought to have been appointed as Urdu Teachers. It is manifest on strictly fair analysis of the selection list and even going by the case of the appellants, who, of course, have tried to present a distorted picture to hide the reality and to get away with arbitrariness in denying appointment to the two respondents named above.
23. The Hon'ble Single Judge reached the right conclusion that appointment orders should be issued to the two respondents, namely, Gulerana and Nahid Anzum and denial of appointment to them was without any justification whatsoever.
24. In view of the above discussion, we find that appeal has no merit. It is hereby dismissed. The order of the Hon'ble Single Judge directing the issuance of appointment to the respondents-Gulerana and Nahid Anzum is affirmed in this manner that the appointment orders be issued by the appellants to them within one month from today. The respondents Gulerana and Nahid Anzum shall be entitled to salary from the date of their respective joining. However, there would be no order as to costs.
25. The original record be returned to the appellants through their counsel Sri Pradeep Kumar.