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Allahabad High Court · body

2008 DIGILAW 2068 (ALL)

SEEMA MEHRA v. STATE OF UTTAR PRADESH

2008-09-29

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—An advertisement No.1/2002 was issued by the U.P. Secondary Education Service Selection Board (hereinafter referred to as the Selection Board) for selection of Trained Graduate Teacher in various subjects. The petitioner applied and was selected in Arts subject. The Selection Board on 30.7.2004 recommended the name of the petitioner for appointment as a teacher in the College of the respondent No. 6. Based on the aforesaid recommendation, the District Inspector of Schools, by a letter dated 10.9.2004 directed the respondent No. 6 to issue an appointment letter. The petitioner also approached respondent No. 6, but to her dismay, respondent No. 6 refused to issue an appointment letter alleging that the post was required to be filled up by an OBC candidate. The petitioner made various representations to the authorities including the Selection Board praying that a direction should be issued to the respondent No. 6 to allow her to join the post or in the alternative adjust her in some other institution. When nothing was done on her representation, the petitioner filed the present writ petition in the year 2006 praying for a writ of mandamus directing the respondents to give effect to its selection dated 15.7.2004 in favour of the petitioner in the institution of the respondent No. 6 or allocate her in some other institution. 2. When the writ petition was entertained, the Court by various orders, directed the Selection Board to produce the original record as well as also issued direction to the Committee of Management and the District Inspector of Schools to file their affidavits as well as produce their original records. Pursuant to the various directions, notices were issued to the authorities to appear in person, and eventually, the matter was heard after the exchange of affidavits. 3. The admitted facts as culled out from the various affidavits filed before the Court and upon perusal of the original records of the Selection Board, the District Inspector of Schools as well as the record of the Committee of Management is, that on 30.6.1997, one Smt. Nirmala Srivastava, a teacher in L.T. Grade retired and consequently a vacancy arose. 3. The admitted facts as culled out from the various affidavits filed before the Court and upon perusal of the original records of the Selection Board, the District Inspector of Schools as well as the record of the Committee of Management is, that on 30.6.1997, one Smt. Nirmala Srivastava, a teacher in L.T. Grade retired and consequently a vacancy arose. On 23.9.1998 a requisition was sent by the Manager under Rule 11 of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the Rules of 1998) disclosing that the post was required to be filled up by a Scheduled Caste category candidate. Based on the said requisition, which was affirmed by the District Inspector of Schools, the Selection Board recommended the name of one Km. Tara belonging to the Scheduled Caste category but, the Manager of the Committee of Management, respondent No. 6 refused to issue an appointment letter vide its letter dated 9.6.2003. It transpires that in the meanwhile the Manager again sent a requisition on 26.6.2000 for the same post and, this time, the Manager showed that the vacancy was required to be filled up by a general category candidate. The Manager again sent a requisition on 21.7.2001 showing that the post was now required to be filled up by an OBC candidate. 4. It transpires that pursuant to the earlier requisition dated 26.6.2000, the petitioner was selected and her name was recommended on 30.7.2004 by the Selection Board which was refused by the Committee of Management on 28.9.2004. 5. It also transpires that the Committee of Management had sent two requisitions in July 2001, one showing that the post was required to be filled up by an OBC candidate and the second requisition for the same post to be filled up by a general category candidate. These two requisitions apparently were forwarded by the District Inspector of Schools. 6. It transpires that based on the aforesaid requisitions, the petitioner was not allowed to join and the District Inspector of Schools intimated the Selection Board that the petitioner may be adjusted in some other college. 7. During the pendency of the writ petition, it transpires that Ms. These two requisitions apparently were forwarded by the District Inspector of Schools. 6. It transpires that based on the aforesaid requisitions, the petitioner was not allowed to join and the District Inspector of Schools intimated the Selection Board that the petitioner may be adjusted in some other college. 7. During the pendency of the writ petition, it transpires that Ms. Deep Sudha, who was also selected pursuant to the advertisement No. 1/2002, was recommended for appointment in some other college, where she could not join and, eventually, being an OBC candidate, was recommended by the Selection Board in the institution of the respondent No. 6. It has come on record that the Committee of Management allowed Ms. Deep Sudha to join as a teacher in the year 2005. It has been stated by the learned counsel for the Committee of Management that the said teacher is presently working in the institution. 8. During the pendency of the writ petition, the Court directed the Selection Board to file an affidavit indicating, as to whether, any vacancy in Arts subject existed in any institution, of which, the vacancy was advertised in the advertisement No. 1/2002, in the general category. The Selection Board has filed an affidavit indicating that now no vacancy exists in the Arts subject in the general category in the advertisement No. 1/2002. However, one vacancy in Arts subject is existing in an institution but this vacancy occurred subsequently and was advertised in the advertisement No. 1/2005, in which the petitioner could be adjusted, if directed by the Court. 9. Heard Shri P.R. Ganguly, the learned counsel assisted by Sri Ramanuj Pandey, the learned counsel for the petitioner, the learned Standing Counsel for the respondent Nos. 1, 3, 4 and 5 and Sri A.K. Yadav and Sri R.P. Dubey, the learned counsels for the Selection Board and Sri Manoj Kumar Singh, the learned counsel for the Committee of Management. 10. Long drawn arguments were raised by the parties with regard to the vacancy and the arbitrary attitude of the Committee of Management and the casual attitude of the District Inspector of Schools and the harassment caused to the petitioner in not being offered an appointment by the institution in spite of being selected by the Selection Board. 10. Long drawn arguments were raised by the parties with regard to the vacancy and the arbitrary attitude of the Committee of Management and the casual attitude of the District Inspector of Schools and the harassment caused to the petitioner in not being offered an appointment by the institution in spite of being selected by the Selection Board. Submissions were made that the post was advertised to be filled up by a general category candidate, whereas the Selection Board subsequently recommended the name of a candidate belonging to an OBC category which could not be done, and therefore, the learned counsel for the petitioner prayed for the quashing of the appointment of Ms. Deep Sudha. In this regard an impleadment application as well as an amendment application was filed on 11.9.2008 and 16.9.2008 during the course of the hearing of the petition. By the amendment application, the petitioner prayed for the quashing of the appointment of Ms. Deep Sudha and by the impleadment application, the petitioner prayed that Ms. Deep Sudha be impleaded as a contesting respondent. 11. The learned counsel for the Selection Board submitted that the advertisement No. 1/2002 was issued pursuant to the requisition sent by the Committee of Management and verified by the District Inspector of Schools showing the vacancy to be filled up by a general category candidate, and therefore, no fault was committed by the Selection Board and eventually when the District Inspector of Schools intimated that the post was required to be filled up by an OBC candidate, another name of a selected candidate belonging to the OBC category was forwarded. 12. The District Inspector of Schools has not filed any counter affidavit till date and only a report was furnished pursuant to a specific direction given by the Court in this regard, in which the District Inspector of Schools has stated that the post was required to be filled up by a Scheduled Caste category candidate. 13. The Committee of Management admits that wrong requisitions were sent earlier showing that the post was required to be filled up by a Scheduled Caste category candidate and subsequently by a general category candidate and that when the Committee of Management realised their mistake, a fresh requisition was sent showing that the post was required to be filled up by an OBC candidate. The learned counsel for the Committee of Management submitted that the correct status was sent prior to the issuance of the advertisement No.1/2002 and consequently the said respondent was not at fault when they refused to accept the recommendation sent by the Selection Board since that candidate did not belong to the OBC category. 14. From a perusal of the aforesaid narration of the facts, it is clear that each party is trying to put the blame on the other party and none is willing to accept its fault. 15. The procedure for selection of teachers by direct recruitment is provided under Section 10 of the Uttar Pradesh Secondary Education (Services Selection Boards) Act,1982. For facility, the Section 10 of the Act is quoted hereunder : “10. Procedure of selection by direct recruitment.—(1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed. (2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed : Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1).” 16. The procedure for determination and notification of the vacancies is provided under Rule 11 of the Rule 1998 which is quoted hereunder : “11. Determination and notification of vacancies.—(1) For the purpose of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided. Determination and notification of vacancies.—(1) For the purpose of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided. (2) (a) The statement of vacancies for each category of post to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix ‘A’ by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade, and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepare shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31, with a copy thereof to the Joint Director : Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment : Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998.” 17. A perusal of the Section 10 read with Rule 11 of the Rules indicates that the Management is required to determine the number of vacancies in accordance with sub-section (1) of Section 10 of the Act, for which a proforma is given in Appendix A to the Rules. These vacancies are required to be notified by the management and forwarded to the Inspector, who in turn, is required to verify the vacancies, and thereafter, is required to forward the same to the Selection Board. These vacancies are required to be notified by the management and forwarded to the Inspector, who in turn, is required to verify the vacancies, and thereafter, is required to forward the same to the Selection Board. The District Inspector of Schools is required to verify the vacancy on the basis of the record which is kept in his office. Under sub-clause (4) of Rule 11, the Inspector is required to determine such vacancy as per his record. Once the vacancy is sent by the District Inspector of Schools, the Selection Board is required to advertise such vacancy as per the provision of Rule 12 of the Rules of 1998. Once the candidate is selected, the Selection Board is required to recommend the name of the selected candidate to the Management of the institution and the Management is required to comply with the recommendation sent by the Selection Board by the issuance of an appointment letter in favour of the candidate. 18. This Court finds that the Committee of Management, respondent No. 6 had sent different kinds of requisition showing the vacancies to be filled up by different categories, at various stages, for the same post. The Committee of Management initially intimated that the post was required to be filled up by a Scheduled Caste category candidate, then by a general category candidate and finally two requisitions were sent in the same year showing the post to be filled up by a general category and another requisition showing the post to be filled up by an OBC category. From these requisitions sent by the Committee of Management, it becomes absolutely clear that the Management was not sure, as to how, the vacancy was required to be filled up. The said respondent has admitted on an affidavit before this Court that the earlier requisitions sent by the Committee of Management had wrongly been sent and that a mistake had been committed on their part. The Committee of Management is, however, silent on the question, as to why, they had sent two requisitions in the same year of recruitment. Their original record, as produced by the learned counsel for the Management, was perused by the Court and, it has rightly been pointed out by the Standing Counsel, that the relevant pages relating to the requisitions sent for the year in question were missing. Their original record, as produced by the learned counsel for the Management, was perused by the Court and, it has rightly been pointed out by the Standing Counsel, that the relevant pages relating to the requisitions sent for the year in question were missing. Apparently, the Court can safely surmise and presume that the relevant documents was removed deliberately by the Committee of Management. In the light of the aforesaid, the Committee of Management having sent wrong requisitions and refusing to issue an appointment letter to the petitioner, this Court at this stage, has no option but to impose a cost of Rs. 20,000/-. 19. In so far as the District Inspector of Schools is concerned, he is under a mandate under Rule 11(4) to verify the vacancies as well as the reservation which he has not done and has mechanically forwarded the requisition sent by the Committee of Management. Till date, the issue, as to whether, the post is required to be filled up by a general category candidate or by a Scheduled caste category or by an OBC candidate has not been verified. Since the District Inspector of Schools acts as the link between the Committee of Management and the Selection Board and was required to act in accordance with the provisions of the Act and its Rules, which he has not done so, and which has resulted in this acrimonious litigation, consequently this Court also imposes a cost of Rs. 20,000/- upon the District Inspector of Schools. 20. The Selection Board is also responsible for this mess. The Selection Board advertised the post to be filled up by a general category candidate. How did the Selection Board arrive at this conclusion is not known? The Selection Board had two requisitions before it for the same post. Through one requisition, the post was required to be filled up by a general category candidate and by another requisition, the same post was required to be filled up by an OBC candidate. How did the Selection Board arrive at this conclusion is not known? The Selection Board had two requisitions before it for the same post. Through one requisition, the post was required to be filled up by a general category candidate and by another requisition, the same post was required to be filled up by an OBC candidate. The Selection Board should have asked for clarification immediately from the District Inspector of Schools and should have directed the District Inspector of Schools to clarify the situation which the Selection Board did not do so and instead advertised the post without finding out with certainity, as to whether, the post was required to be filled up by an OBC candidate or by Scheduled Caste category candidate or by a general category candidate. By not doing so, the petitioner was unnecessarily recommended for an appointment in the institution of the respondent No. 6. For this action, this Court has no option but to impose a cost of Rs. 20,000/-. 21. The selection of the petitioner was made in the year 2004 pursuant to the advertisement No. 1/2002. The writ petition was filed in the year 2006 when Ms. Deep Sudha had already joined the institution of respondent No. 6 on the post, on which the petitioner was recommended. Consequently, at the stage of the hearing of the petition, the Court is not inclined to consider the impleadment application as well as the amendment application for impleading Ms. Deep Sudha as a necessary party or for the quashing of her appointment. 22. Much water has flown since the filing of the writ petition and at this stage, it will not be proper to quash the appointment of a candidate who was recommended by the Selection Board, whose selection otherwise is not in a dispute. Consequently, the amendment application as well as the impleadment application filed by the petitioner on 11.9.2008 and 16.9.2008 are rejected summarily. 23. In the light of the aforesaid and in view of the averments made by the Selection Board, it is clear that there is no vacancy in the Arts subject, in which the petitioner could be adjusted in another institution as provided under sub-clause (5) of the Rule 13 of the Rules, as amended by notification dated 23.1.2007. 23. In the light of the aforesaid and in view of the averments made by the Selection Board, it is clear that there is no vacancy in the Arts subject, in which the petitioner could be adjusted in another institution as provided under sub-clause (5) of the Rule 13 of the Rules, as amended by notification dated 23.1.2007. The Selection Board has categorically stated that there is no vacancy existing as on date in the advertisement No. 1/ 2002 but there exists a vacancy in Arts subject in the advertisement No. 1/05, in which the Court could issue a direction for the adjustment of the appointment of the petitioner under Rule 13(5) of the Rules of 1998. 24. Having considered the submission of the learned counsel for the Selection Board, this Court finds that the petitioner applied for an appointment pursuant to the advertisement No. 1/2002. There is no vacancy in this advertisement, the petitioner cannot be adjusted in a vacancy which came into existence after the advertisement of 2002. Since that vacancy was not notified in the advertisement No. 1/2002, the petitioner cannot be adjusted on a vacancy which came into existence subsequently. So far as advertisement No. 1/ 2005 is concerned, the petitioner did not apply, and therefore, the petitioner cannot be adjusted on such post which was advertised in the advertisement No. 1/ 2005. 25. In view of the aforesaid, since no vacancy exists, the Court cannot issue a mandamus commanding the Selection Board to adjust her in some other institution. 26. Consequently, even though, the petitioner was selected on merit but in view of the fact that there is no vacancy existing at the present moment, this Court cannot issue any direction in her favour but will award cost of the litigation since the petitioner has unnecessarily being harassed, which the Court assess at Rs. 50,000/- to be paid by all the respondents. The Selection Board and the Committee of Management is directed to pay to the petitioner by means of a cross demand draft a sum of Rs. 20,000/- in favour of the petitioner within six weeks from today. The District Inspector of Schools is also directed to pay a sum of Rs. 10,000/- by means of a cross demand draft to the petitioner within the same period. The District Inspector of Schools is further required to pay another a sum of Rs. 20,000/- in favour of the petitioner within six weeks from today. The District Inspector of Schools is also directed to pay a sum of Rs. 10,000/- by means of a cross demand draft to the petitioner within the same period. The District Inspector of Schools is further required to pay another a sum of Rs. 10,000/- by means of a cross demand draft in favour of the Registrar General which will be credited by the Registrar General in the Mediation and Conciliation Centre Account. The aforesaid amount payable in favour of the petitioner shall be handed over to the petitioner’s counsel, who in turn will forward the same to the petitioner. 27. In the event, the respondents fails to deposit the amount within the aforesaid period, it would be open to the petitioner to move an appropriate application before this Court for further orders for the recovery of said amount as arrears of land revenue. 28. The Court further directs the Secretary, Secondary Education to constitute an enquiry and recover the amount from the erring District Inspector of Schools who has responsible for this mess. The writ petition is disposed of. ————