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2004 DIGILAW 442 (ALL)

Rajendra Kumar Gupta v. State of U. P.

2004-03-01

SUNIL AMBWANI

body2004
JUDGMENT Sunil Ambwani, J.—Heard Sri Ashok Khare, senior advocate assisted by Sri Ram Kumar Singh for petitioner and Dr. R. G. Padia for respondent No. 6 assisted by Sri Anil Bhushan. I also heard learned standing counsel for the other respondents. 2. Brief facts, giving rise to this writ petition, are that Sri Beer Bahadur Singh, respondent No. 6, the second senior most teacher in Sri Krishna Geeta Rashtriya Inter College Lalganj, Azamgarh was considered for selection to the post of Principal of Shri Shanker Ji Inter College, Deeha, Azamgarh in pursuance of advertisement issued in the year 1985-86, by the Secondary Education Services Selection Board Act, U. P. The appointment was challenged by Sri Chandra Bhan Pandey, Senior Most Teacher in the institution on the ground that he had a right to be regularised under Section 33A (1A) of the U. P. Secondary Education Services Selection Board Act, 1982. He filed Writ Petition No. 3569/1996 claiming a right to be regularised. The writ petition was disposed of on 11.12.1998 with direction to the Regional Director of Education to examine and decide the factual aspects of the case. In the operative portion of the order of this Court clarified, that in case the representation filed by the petitioner finds favour, the Regional Joint Director of Education, shall issue appropriate direction for and proper placement of the selected candidate in any other institution. The operative portion of the order is quoted as below : “Accordingly, the writ petition is disposed of with the direction that in case the petitioner prefers a representation, the Regional Joint Director of Education shall take decision in the matter in accordance with law and in the light of observations made in the writ petition within three months from the date of production of representation along with certified copy of this order. Needless to say that the committee of management and the 5 respondent shall be heard before taking final decision on the representation. It is further clarified that in case, the representation filed by the petitioner finds favour with the Regional Joint Director of Education, the latter shall issue appropriate direction for proper placement of the selected candidate in any other institution.” 3. The Joint Director by his order dated 28.2.2001 found that Sri Chandra Bhan Pandey was eligible and regularised him on the post of Principal of Sri Shanker Ji Inter College, Deeha, Azamgarh. The Joint Director by his order dated 28.2.2001 found that Sri Chandra Bhan Pandey was eligible and regularised him on the post of Principal of Sri Shanker Ji Inter College, Deeha, Azamgarh. With the regularisation of Sri Chandra Bhan Pandey, in pursuance of Section 33A (1A) inserted by U. P. Act No. 26/1991, the vacancy on the post of Principal of Sri Shanker Ji Inter College, Deeha, Azamgarh was filled up. The regularisation of service was deemed to have come into force from the date of commencement of U. P. Secondary Education Services Commission and Selection Board (Amendment) Act, 1991. There was, therefore, no vacancy on the post of Principal on the day when regularisation was made and thus the selection of respondent No. 6 could not be made by the Board. The last portion of the observation made by this Court in its order dated 11.12.1998 for placement of the selected candidate in any other institution, however, kept the matter live. 4. Sri Beer Bahadur Singh has filed Writ Petition No. 639/1999 in which a direction was given to the respondents to declare the results of selection in respect of post of Principal of Sri Shanker Ji Inter College, Deeha, Azamgarh, if possible, within a period of one month. 5. The Board declared the result on 22.5.2001 after which Sri Beer Bahadur Singh, selected candidate started making representation for his adjustment in some other colleges. Initially, the Joint Director of Education, Azamgarh by his letter dated 12.11.2003 requested the Secretary of the Selection Board, Allahabad to pass appropriate orders. The Board, however, referred the matter back to the Joint Director vide its letter dated 25.11.2003. By impugned order the Joint Director of Education has directed that Sri Beer Bahadur Singh may be absorbed as Principal in Sri Krishna Geeta Rashtriya Inter College, Lalganj, Azamgarh. 6. The petitioner Sri Rajendra Kumar is officiating principal in Sri Krishna Geeta Rashtriya Inter College, Lalganj, district Azamgarh. Sri Ashok Khare appearing for the petitioner has confined his submission only to the question that there was no vacancy in Sri Shanker Ji Inter College, Deeha, Azamgarh and thus the petitioner’s selection in pursuance of the advertisement issued by the Board in 1995-96 cannot give him a right to seek absorption in any other colleges. Sri Ashok Khare appearing for the petitioner has confined his submission only to the question that there was no vacancy in Sri Shanker Ji Inter College, Deeha, Azamgarh and thus the petitioner’s selection in pursuance of the advertisement issued by the Board in 1995-96 cannot give him a right to seek absorption in any other colleges. Sri Khare submits that there is no such provision in the U.P. Secondary Education Services Selection Board Rules, 1993, as amended in 1995, and thereafter in 1998, to absorb a principal selected by the Board for a College, in any other college, and that such an absorption will affect petitioner’s right to be considered as senior most teacher on the vacancy by the Board. 7. Sri Ashok Khare has relied upon para 30 of the Division Bench judgment of this Court in Indra Raj Singh v. U. P. Madhyamik S.S.A., Allahabad, 1984 UPLBEC 510. 8. Dr. R. G. Padia, on the other hand, states that respondent No. 6 is a selected candidate. The observations made by this Court in its judgment dated 11.12.1998 are binding on the respondents as well as on the petitioner and that there is a vacancy on the post of principal in the Krishna Geeta Rashtriya Inter College, Lalganj, Azamgarh. There is no bar under the Act to absorb a selected candidate in any other College where a vacancy is available. The petitioner has no right to object the appointment by way of absorption. 9. The 1993 Rules provided for consideration of the senior most teachers in the College for a vacancy existing in the College. He has no right to give preference in appointment or absorption in any vacancy existing in other Colleges. A teacher candidate is considered for selection, qua the College in which he is teaching as senior most teacher. In a case where he is selected, cannot be appointed for any reason whatsoever, he cannot be appointed or absorbed in any vacancy in other colleges. 10. The petitioner was not a party in Writ Petition No. 3569 of 1996. Any absorption made in the order passed in the said writ petition cannot bind petitioner and affect his rights. In a case where he is selected, cannot be appointed for any reason whatsoever, he cannot be appointed or absorbed in any vacancy in other colleges. 10. The petitioner was not a party in Writ Petition No. 3569 of 1996. Any absorption made in the order passed in the said writ petition cannot bind petitioner and affect his rights. No doubt an officiating principal does not have right to hold the post, the senior most teacher officiating as Principal has been given right under the Rules of 1993 as amended in 1995 and in the year 1998 to be considered for the post of principal along with open market candidates, where a vacancy is filled up by absorption by a selectee of any other colleges, the right of senior most teacher will be seriously affected. The Joint Director of Education has no authority to adjust or to absorb the selectee, who was a senior teacher in the college qua which the selection was held to be absorbed in any other colleges. 11. The writ petition is, consequently, allowed. The impugned order dated 12.12.2003 is set aside. It is declared that there was no vacancy on the post of Principal in Sri Shanker Ji Inter College, Deeha, Azamgarh and as such no selection can be held for the post of Principal. The respondent No. 6, the second senior teacher, could not have been appointed as Principal and thus the question of his absorption did not arise. The impugned order as well as the appointment of respondent No. 6 as Principal of the College is set aside. There shall be no order as to costs.