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Allahabad High Court · body

2007 DIGILAW 183 (ALL)

RAM SHIROMANI SHUKLA v. STATE OF UTTAR PRADESH

2007-01-22

V.C.MISRA

body2007
JUDGMENT Hon’ble V.C. Misra, J.—Sri K.C. Shukla, learned Counsel appearing for the petitioner, learned Standing Counsel appearing for respondent Nos. 1, 3 and 4 and Sri A.K. Yadav, learned Counsel appearing for respondent No. 2 are present. List is revised. No one has appeared on behalf of respondent No. 5. 2. On the joint request of learned Counsel present for the parties this writ petition is heard and decided finally in terms of the Rules of the Court, 1952. Counter and rejoinder affidavits have been exchanged in this matter. 3. This writ petition has been filed for issuance of a writ, order or direction in the nature of Certiorari quashing the order dated 13.1.2006 passed by respondent No. 3. District’ Inspector of Schools, Shahjahanpur (Annexure 4 to the writ petition) and further for issuance of a writ, order or direction in the nature of mandamus commanding the respondent No. 3 to consider the case of the petitioner for appointment on the post of Lecturer in Hindi in L.B. J.P. Inter College, Tilhar, Shahjahanpur and issue letter of appointment to him in accordance with law and to pay salary to him for the post of Lecturer in Hindi month to month with all service benefits. 4. The facts of the case in brief are that the petitioner was duly selected by respondent No. 2-U.P. Secondary Education Services and Selection Board, Allahabad (hereinafter referred to as ‘the Board’) and his name was placed at serial number 2 on the select list against the post of Lecturer in Hindi having fallen vacant in the institution of respondent No. 4, i.e. L.B.J.P. Inter College Tilhar, Shahjahanpur. Since Sri Asha Ram whose name was placed at serial number 1 on the select list did not join the said post in the institution in question the petitioner claimed his entitlement to be appointed as lecturer in Hindi in the institution, in question, as he was placed at serial number 2 in the merit list. The petitioner approached the respondents by way of representations but he was not allowed to join on the said post. Being aggrieved he filed a Civil Misc. The petitioner approached the respondents by way of representations but he was not allowed to join on the said post. Being aggrieved he filed a Civil Misc. Writ Petition No. 20049 of 2005 which was disposed of by this Court vide order dated 9.8.2005 (Annexure 3 to the writ petition) with the direction that in the event the petitioner makes a fresh representation to the District Inspector of Schools, Shahjahanpur the same shall be adjudicated by the concerned District Inspector of Schools by passing reasoned and speaking order in accordance with law within a period of three months after calling for comments from the management of the institution in question as well as from Sri Asha Ram Awasthi selected and placed at serial number 1 and whatever decision was taken was to be communicated to the petitioner. The representation of the petitioner was rejected vide impugned order dated 13.1.2006 (Annexure 4 to the writ petition) passed by respondent No. 3 on the ground that the said post had been wrongly advertised and selection process had been wrongly initiated as the said post was to be filled up by way of promotion in terms of the rules and one Sri Hari Shanker Sharma-respondent No. 5 had been subsequently appointed on the said post by way of promotion and therefore, as there was no vacancy on the post of lecturer in Hindi in the institution in question on which the petitioner staked his claim, he was not entitled for any appointment on the said post. Being aggrieved the petitioner has filed the instant writ petition. 5. The respondents have filed their counter affidavits. It has been submitted on behalf of the respondents No. 1, 3 and 4 that since the post of lecturer which fell vacant due to the retirement of one. permanent lecturer in Hindi in the institution, in question was to be filled up under 50 per cent promotion quota and the same had been filled up accordingly and though the post belonged to promotional quota, the Committee of Management of the institution in question has sent requisition for filling up the post of lecturer by direct recruitment to the Board whereby though the petitioner was duly selected and his name was placed at serial number 2 but even then he was not entitled for being given appointment on the said post. 6. 6. Learned Counsel for the petitioner has submitted that since an advertisement had been duly made by the Board for direct recruitment on the post of Hindi Lecturer in the institution in question and the petitioner was duly selected after due selection process by the Board, the petitioner has a right to be considered and posted on the said post of lecturer in Hindi in the institution in question. He further submitted that since the vacancy on the said post in the institution in question having been advertised by the Board on the intimation of vacancy by the institution in question, it is now no longer open to anybody including the respondent No. 4 to dispute the existence of vacancy on the post of lecturer in Hindi in the institution in question. He has placed reliance upon a Division Bench decision of this Court rendered in the case of Devendar Kumar Singh v. State of U.P. and others, 2006 (1) ESC 355 (All) wherein it has been held that when the institution notified the existence of vacancy of lecturer to the Commission showing that there was a clear vacancy on the said post the conduct of respondent in not disputing existence of vacancy at that very time when it was communicated to the Commission or when the same was notified by the Commission for selection and appointment, the respondent institution is now estopped to raise the question of existence of vacancy on the post of lecturer. 7. Learned Counsel for the petitioner vehemently argued that once the petitioner was duly selected by the Board on a notified vacant post thereafter the respondent-committee of management of the institution in question or the State cannot after a long time, after due selection and placement of the selected candidate had been made turnaround and would not be permitted to say that no vacancy existed in the institution in question when the requisition was sent by committee of management of the institution in question or vacancy was notified by the Board. It is further contended that in the present case the requisition was made by the management committee of the institution in question in the year 1997 and since requisition had already been made and selection was made prior to the objection raised by the respondent committee of management of the institution in question through the Principal that no vacancy was available for direct recruitment as the post was required to be filled up by way of promotion, it was not open for the respondents to take this plea at the belated stage. The said requisition by the management committee of the institution in question has not been denied in the counter affidavit filed in this case on behalf of the respondents. The objection, which was raised for the first time by the Principal of the institution in question, was in the year 2000 which has been referred to in the impugned order, which should have been raised at the time when the vacancy was notified by the Board. 8. Learned Counsel present appearing for the respondents have admitted that Division Bench decision of this Court rendered in Devendra Kumar Singh (supra) upon which much reliance has be placed by the learned Counsel for the petitioner is fully applicable to the facts and circumstances of the present case. 9. I have heard learned Counsel for the parties at length and carefully perused the material available on the record. 10. From perusal of the record it is apparent that admittedly the institution in question sent the requisition for filling up the vacancy of Lecturer in Hindi to the Board as required under the Commission Act and the Board accordingly notified the vacancy and at that point of time the respondents did not raise any objection against the notification of vacancy of the post of lecturer in Hindi in the institution in question. That being the position in my view if the institution in question intimated the vacancy of lecturer in Hindi to the Board it itself shows that there was a clear vacancy on the said post and if the respondent management of the institution in question had any grievance it should have raised objection/grievance, if any, at that relevant point of time when the requisition was sent by the institution or at the most when the Board notified the vacancy for direct recruitment through selection process. In such circumstances the conduct of the respondents in not disputing the existence of vacancy at that very point of time when the same was notified by the Board, they should not be allowed to raise any objection with regard to existence of vacancy on the post of lecturer in Hindi in the institution in question. 11. In view of the above said facts of the case and in view of the aforesaid Division Bench decision rendered in Devendra Kumar Singh (supra) which is fully applicable to the facts and circumstances of the present case, the respondents are estopped to say that no vacancy existed on the post of lecturer in Hindi in the institution run by the respondent No. 4 at that point of time when the vacancy was notified by the Board for direct recruitment. In such circumstances of the case, it was obligation on the part of the State respondents to give appointment on the post of Lecturer in Hindi to the petitioner in the institution in question or in any other institution where they found him suitable for the same as they had duly selected him through selection process in accordance with law. 12. Accordingly the impugned order dated 13.1.2006 (Annexure 4 to the writ petition) passed by respondent No. 3 the District Inspector of Schools, Shahjahanpur is hereby quashed. The respondent Nos. 2 and 3 are directed to allow the petitioner to join on the post of lecturer in Hindi in the institution in question itself or some other institution under them where they find him suitable within a period of one month from the date of production of certified copy of this order before them. The writ petition is accordingly disposed off with no order as to costs. ————