K. Vinod Chandran, CJ. – The appeal is directed against the judgment by a learned Single Judge, which unseated the appellant and allowed the 11th respondent, the petitioner in the writ petition to be put in his place. The controversy involved is the application of the reservation roster; both the vertical and horizontal reservation. There is also the question whether the petitioner had approached the authorities delayed.

2. We heard learned Senior Counsel Sri Sanjay Singh for the appellant and learned counsel for the 11th respondent Sri Parmatma Singh and the learned Government Advocate Mr. Apurva Kumar.

3. The learned Single Judge on the basis of 5 vacancies found that the first post would be filled up by one Rita Kumari, who is just the name sake of 11th respondent and not a party in the above writ petition, who obtained the maximum marks and stood first in the order of merit. The second post which belongs to un-reserved female would hence be filled up from the next meritorious female who was Pooja Verma, the first respondent, who also is a candidate belonging to the reserved category. It was found that the post offered to Birendra Kumar Mishra, the appellant herein would be erroneous since he would have to give way to Pooja Verma, the un-reserved female in which circumstance the next candidate would have to be an SC candidate and that too a female candidate which would be conceded to the petitioner, who stood last in accordance with the merit. It was found that the ground of delay could not be held against the writ petitioner.

4. First, we will deal with the question of delay. The advertisement was of the year 2008 and the petitioner who was not called for counseling is said to have approached the District Teacher Employment Appellate Authority, Bhojpur with Case No.920/2009 which was allowed by order dated 18.05.2010 (Annexure-3). The counseling of the petitioner hence was carried out but later the petitioner was not appointed. The petitioner then challenged the issue before the District Teacher Employment Appellate Authority by a representation dated 02.05.2014 produced as Annexure-6. The petitioner contends that she resides in a far away place in Ara which was also a rural area which was the reason of delay. The District Appellate Authority rejected the case on the ground of delay. A further appeal was filed before the State Appellate Authority, which on facts stood rejected. The District Appellate Authority found that Rita Kumari, though a backward class candidate would be considered to be appointed in the un-reserved female vacancy and hence, the appellant herein would be appointed in the second un-reserved category.

5. We have to first notice the reservation points which is evident from Annexure-2. The tabular form in Annexure-2 shows that the appointment starts from roster point 74 and ends at roster point 78. Roster point 74 is a SC vacancy, 75 an un-reserved vacancy, 76 an EBC vacancy, 77 an unreserved (female) vacancy and 78 a Scheduled Caste (female) vacancy. The merit list is evident from the writ petition itself which is shown in a tabular form which is extracted herein: –

6. Admittedly, the petitioner was not counseled along with the 5 candidates but for the purpose of completion, we will assume that the petitioner is also included in the merit list; with her marks at 54.78%, she will have to be considered as the 6th candidate. The petitioner is a female and a member of the Scheduled Caste community.

7. Going by the merit list, the