Unfilled reserved vacancies can be filled by general candidates post-amendment to the Act, shifting the burden of proof to the appointing authority.

JUDGMENT :

1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare, learned counsel for the petitioner-appellant and Sri Kushmondeya Shahi, learned counsel appearing for the Board of Basic Education.

2. Instant special appeal has been filed challenging the judgment and order dated 1.3.2024 passed by a learned Single Judge of this Court in Writ-A No.695 of 2023 (Padmakar Dixit vs. State of UP & Others), whereby the writ petition filed by the petitioner-appellant has been dismissed.

3. By a notification dated 16.6.2016, the State Government notified a recruitment of Assistant Teachers in the State of Uttar Pradesh to all the Basic Shiksha Parishad Schools and to that effect, an advertisement was also issued on 27.6.2016. Applications were invited for recruitment in all the districts of Uttar Pradesh between 30.6.2016 to 15.7.2016. In the advertisement, it was provided that in the first round of counselling, a candidate could apply for being appointed as Assistant Teacher only in the district from where he/she had done his/her BTC Training Certificate Course. However, it was provided that in the second round of counselling, a candidate could apply for the remaining unfilled vacancies in any district of Uttar Pradesh. The first round of counselling was held on 16.8.2016 and 17.8.2016. The appellant had passed his BTC Training Certificate Course from district Varanasi and, therefore, he applied for the vacancies as were there in district Varanasi. However, he was unsuccessful in the first round of counselling and, therefore, he applied for the second round of counselling and since there was an option that in the second round of counselling, application may be made for any district of the State, the appellant opted for district Mirzapur and made that district as his first preference. The counselling, which was conducted for district Mirzapur, was so done on 24.8.2016 and when the merit list was prepared, the appellant was placed at serial no.1 of the merit list. Thereafter, the appellant was issued an appointment letter on 27.8.2016 by the Basic Shiksha Adhikari, Mirzapur and in pursuance thereof, he joined on 6.9.2016. However, on 18.11.2021, a show cause notice was issued to the appellant, stating therein that after completion of the first counselling, 17 posts of Assistant Teacher remained vacant in district Mirzapur, which included 3 posts under vertical reservation of Scheduled Castes and 14 posts under Horizontal Reservation out of which, 2 posts were reserved for Physically Handicapped candidates suffering from visual disability and 2 posts were for candidates suffering from hearing disability, 10 posts were for Ex-servicemen. In the show cause notice, it was stated that since there was no post for General Category candidate, the appellant was wrongly appointed in the second round of counselling. The appellant, replied to the show cause notice and thereafter, the Basic Shiksha Adhikari, Mirzapur, on 10.3.2022, passed an order for stopping the payment of salary to the appellant. This order was challenged by the appellant by filing of a writ petition, being Writ Petition No.11964 of 2022 (Padmakar Dixit vs. State of UP & Others).

4. However, when the appointment of the appellant itself was held to be invalid by an order dated 2.12.2022, he challenged the same by means of a writ petition, being Writ-A No.695 of 2023. When the said writ petition was dismissed by the order impugned dated 1.3.2024 of a learned Single Judge, the instant appeal was filed.

5. Learned counsel for the appellant assailed the order of the learned Single Judge, by submitting that the inquiry itself was a belated inquiry, it having commenced after a period of six years of the initial appointment of the appellant. It has further been argued that the appellant was a simple candidate, who had participated in the second round of counselling and was unaware of the fact that the post on which he was being appointed was reserved for Visually Ha