Hon’ble Sudhir Agarwal, J.—By means of the impugned order the petitioner, who belongs to OBC, and was selected for class IV post in Adarsh Krishi Inter College, Saraul, District Aligarh, has been declined approval on the ground that the vacancy was unreserved and was also advertised as unreserved vacancy, yet the petitioner, who belongs to OBC, has been selected, which is not permissible in law.

2. It is contended that assumption on the part of the Joint Director of Education, Aligarh that the reserved category candidate cannot be selected against the unreserved vacancy is clearly illegal and contrary to what has been held by this Court in Sanjeev Kumar Singh v. State of U.P. and others, 2007 (2) ESC 1042 (ALL)(DB) and the Apex Court in Jitendra Kumar Singh and another v. State of Uttar Pradesh and others, (2010) 3 SCC 119.

3. Learned standing counsel, per contra, attempted to defend the order for the reasons stated in paras 7 and 8 of the counter affidavit, which reads as under:

“7. That in reply to the contents of paragraphs 12 to 16 of the writ petition, it is most respectfully submitted that the District Inspector of Schools has granted permission for filing up the post from amongst unreserved candidates/general candidates and accordingly, the advertisement was published for appointment under the quota of general category but the selection committee has illegally and arbitrarily selected the petitioner who belongs to the backward category while the post in question was required to be filled up from the general category candidate. However, after the selection, the matter was referred to the Regional Committee for necessary approval and the said committee after having scrutinized the matter has found the alleged selection of the petitioner to be illegal and against the permission granted by the department hence the selection of the petitioner was rejected by the regional committee vide its order dated 3.9.2008, which is perfectly just and legal, and there is no illegality in it.

8. That the contents of paragraphs 17, 18 and 19 of the writ petition are not admitted and in reply it is submitted that the post in question of Class IV employee was for the quota of general category candidate and accordingly, permission was granted by the department for filling up the said post from amongst unreserved candidates and accordingly, the advertisement was published for appointment under the quota of general category but the selection committee has illegally and arbitrarily selected the petitioner who belongs to the backward category while the post in question was required to be filled up from the general category candidate. However, after the selection, the matter was referred to the Regional Committee for necessary approval and the said committee after having scrutinized the matter has found the alleged selection of the petitioner to be illegal and against the permission granted by the department hence the selection of the petitioner was rejected by the regional committee vide its order dated 3.9.2008, which is perfectly just and legal and there is no illegality in it.”

4. In my view, this writ petition deserves to succeed. It is well established now that an unreserved vacancy is open to all and even a candidate belonging to reserved category is entitled and eligible to be considered there against, though the general candidate is excluded from the zone of consideration against the reserved category vacancy. Considering the various authorities on this subject in para 40 of Sanjeev Kumar Singh v. State of U.P. and others (supra) this Court has held as under:

“40. At this stage, it would be prudent to notice when certain seats are reserved, it would not result in making unreserved seats compartmentalized for general category candidates i.e. unreserved candidates. There is no reservation for general category candidates. In other words we can say, when certain seats are reserved, a reserve category candidate in addition to reserve