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Allahabad High Court · body

2007 DIGILAW 2070 (ALL)

MANINDRA KUMAR. v. STATE OF UTTAR PRADESH

2007-08-08

ASHOK BHUSHAN

body2007
JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Counsel for the petitioner and Sri A. K. Yadav appearing for the respondents. 2. By this writ petition the petitioner has prayed for mandamus commanding the U.P. Secondary Education Service Selection Board, to recommend the name of the petitioner to some other college for the post of Lecturer in Hindi in pursuance of Rule 13 (5) of the U.P. Secondary Education Services Selection Board Rules, 1998. 3. Brief facts of the case are : The petitioner was selected by the U.P. Secondary Education Service Commission and Selection Board on the post of Lecturer in Hindi. The Secretary, U.P. Secondary Education Service Commission and Selection Board sent the panel of candidates on 6.12.2004 forwarding the name of the petitioner for appointment in Gandhi Inter College, Jalaun at Orai. The petitioner did not join in Gandhi Inter College, and gave an application to the Manager/District Inspector of Schools that his mother and wife are undergoing treatment hence he is unable to join. The District Inspector of Schools wrote a letter dated 1.10.2005 to the Secretary, U.P. Secondary Education Service Commission and Selection Board communicating the request of the petitioner for adjustment in some other district. Petitioner’s case in the writ petition is that due to treatment of his wife which is continuing since 1989 at Calcutta, Agra and Etah he is unable to join at Gandhi Inter College, Jalaun at Orai. Petitioner has, in this writ petition, placed reliance on Rule 13 sub-rule (5) as amended by the U.P. Secondary Education Service Selection Board (Second Amendment ) Rules, 2007 which is to the following effect : “13. (5) Where a candidate selected by the Board could not join in an allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of Schools shall recommend to the Board for the adjustment of such candidate against any other vacancy notified to the Board in any other institution. On receipt of the recommendation of the District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board.” 4. I have considered the submissions of Counsel for the petitioner and perused the record. 5. Learned Counsel for the petitioner has also referred to Rule 12 (10) of the U.P. Secondary Education Services Selection Board Rules, 1998. I have considered the submissions of Counsel for the petitioner and perused the record. 5. Learned Counsel for the petitioner has also referred to Rule 12 (10) of the U.P. Secondary Education Services Selection Board Rules, 1998. Petitioner’s case further is that he was not given appointment in the institution of his preference. From perusal of Rule 12 of the U.P. Secondary Education Services Selection Board Rules, 1998, the rule indicate that allotment of college is made by the U.P. Secondary Education Commission and Selection Board on the basis of merit of the candidate giving due regard to his choice. However, a candidate is entitled to get appointment in the college of his choice only according to his merit. The petitioner having not been allotted institution of his choice, it is clear that he did not have sufficient merit to get his appointment in those institutions. The petitioner did not join the institution at his own choice. A perusal of Rule 12 sub-rule (10) of the U.P. Secondary Education Services Selection Board Rules, 1998 indicate that the name of the candidate is recommended according to placement of the candidate in the panel and his preference as given in accordance with Rule 12 sub-rule (9). Rule 13 sub-rule (3) provides that when a candidate failed to join within the time allowed the District Inspector of Schools on the request of the Management has to indicate fresh name standing next in order of merit. Rule 13 sub-rule (3) is as follows : “13 (3) Where the candidate, referred to in sub-rule (1) fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provision of sub-rules (1) and (2) shall Mutatis Mutandis apply." 6. Rule 13 (5) which has now been added in the Rule by amendment dated 23.1.2007 has to be interpreted in the manner which may advance the object of the provisions of the Act and Rules. The placement of the candidate in different institution is on the basis of the merit of the candidate and preferences. Rule 13 (5) which has now been added in the Rule by amendment dated 23.1.2007 has to be interpreted in the manner which may advance the object of the provisions of the Act and Rules. The placement of the candidate in different institution is on the basis of the merit of the candidate and preferences. The choice of the institution is not at the sweet will of the candidate. The candidates who are contemplated to be adjusted by the U.P. Secondary Education Service Commission and Selection Board to other institutions are the candidates who could not join in the allocated institutions due to non availability of vacancy or for any other reason. In case the candidate does not join the institution due to non-availability of vacancy or due to any other similar reasons he might be entitled for adjustment but a candidate who did not join of his own will, cannot be held to be entitled for right of adjustment in some other institution. The petitioner having not joined in the institution, the person lower in the panel might have been appointed and the vacancy filled up. The words “for any other reason” as occurring in Rule 13 sub-rule (5) has to be interpreted “ejusdem generis” alongwith earlier phrase “non availability of vacancy”. In case the words “for any other reason” is interpreted to mean that joining in an institution is according to wish and whims of the candidate, the same will result in uncertainty and unjust consequence. Learned Counsel for the petitioner has also placed reliance on the judgment of this Court dated 3.7.2006 in writ petition No. 22504 of 2006 (Rinki Verma v. State of Uttar Pradesh and others). The said case was a case where the writ petition was filed by a candidate claiming that she was not allotted institution of her choice. In that case this Court issued direction to consider the case of the petitioner on the basis of statement in the counter-affidavit by the U.P. Secondary Education Commission and Selection Board, which was to the following effect : “The counter-affidavit of the Selection Board does not indicate that the institutions preferred by the petitioner does not have a vacancy on the post of lecturer in Biology.” 7. Thus the judgment in Rinki Varma’s case (supra) is clearly distinguishable and has no application on the facts of the present case. 8. Thus the judgment in Rinki Varma’s case (supra) is clearly distinguishable and has no application on the facts of the present case. 8. In the facts of the present case no right can be said to have accrued in the petitioner by which the petitioner may claim adjustment in any other institution for the post of Lecturer in Hindi. The mandamus as prayed cannot be granted and the writ petition is liable to be dismissed. It is, however, observed that the dismissal of the writ petition shall not preclude the U.P. Secondary Education Service Commission and Selection Board from allocating any institution to the petitioner to which petitioner may be entitled according to law and his merit as disclosed in the selection. Subject to above, the writ petition is dismissed. ————