JUDGMENT Hon’ble Shashi Kant Gupta, J.—Writ Petition No. 60991 of 2006 (O.P. Awasthi v. State of U.P. and others) inter alia, has been filed for quashing the appointment letters dated 18-5-2006 and 14-2-2006 issued in favour of respondents No. 6 and 7 (Narain Dutt Sharma and Bhagwat Saran) by the respondent No. 5 authorized controller/Committee of Management, C.A.S. Intermediate College, Fareedpur district Bareilly. 2. Writ Petition No. 54934 of 2006 (O.P. Awasthi v. State of U.P. and others) has been filed, inter alia, challenging the order dated 8-9-2006 whereby the name of the respondent No. 5 Pramod Kumar Singh (in short “P.K. Singh”) recommended by Selection Board for appointment, on the post of Assistant teacher, L.T. grade (English) was intimated to the management of the institute by the District Inspector of Schools (in short “DIOS”). 3. Writ Petition No. 44499 of 2007, Bhagwat Saran v. State of U.P. and others, has been filed, inter alia, for quashing the order dated 1-8-2007 whereby respondent No. 5 Om Prakash Awasthi, was allowed to re-join C.A.S. Intermediate College, Fareedpur, District Bareilly, (in short “College”) as assistant teacher L.T. Grade in English (in short “assistant teacher”) in the light of interim order dated 21-11-2006 passed by this Court in Writ Petition No. 60991 of 2006. 4. The background facts in nutshell are as follows : 5. Om Prakash Awasthi (in short “O.P. Awasthi”) was granted adhoc appointment in pursuance of an advertisement issued on 8-6-1998 as provided under U.P. Secondary Education (Service Selection Board) Act, 1982 (in short Act, 1982) and the rules made thereunder. The appointment of O.P. Awasthi was purely on adhoc basis till a regularly selected candidate comes and joins the said post in the institution. He joined the institution on 6-7-1998. The requisition was sent by the Committee of management of the college (in short “Management”) on 6-12-2005, wherein seven posts of assistant teachers in L.T. Grade including three vacancies of Assistant teachers in L.T. Grade in English were specified. By letter dated 8-9-2006, the DIOS in pursuance of the recommendation of the Selection Board directed the Management to appoint P.K. Singh, as assistant teacher in the college. 6. Narain Dutt Sharma (in short N.D. Sharma) and Bhagwat Saran, applied for appointment to the post of Assistant teacher in LT Grade (English) in response to the advertisement No. 1 of 2004 issued by the Board and were duly selected. 6. Narain Dutt Sharma (in short N.D. Sharma) and Bhagwat Saran, applied for appointment to the post of Assistant teacher in LT Grade (English) in response to the advertisement No. 1 of 2004 issued by the Board and were duly selected. N.D. Sharma and Bhagwat Saran were allotted Vishnu Intermediate College, Bareilly and Govind Ballabh Pant Intermediate College, Jigna, Abhaipur, Bareilly, respectively. Since, in the aforesaid colleges, the posts were not vacant, therefore, Sri N.D. Sharma and Sri Bhagwat Saran were adjusted in the present college on the basis of appointment letter dated 14-2-2006 and 18-5-2006. 7. Adhoc appointment of O.P. Awasthi came to an end after the appointment of P.K. Singh as Assistant teacher in the college in pursuance of the recommendation of the Selection Board under the Act 1982. On being aggrieved by the appointment of P.K. Singh, O.P. Awasthi filed a Writ Petition No. 54934/06 challenging the appointment of P.K. Singh in the College as an assistant teacher. At this place it is useful to refer relevant paragraphs 12, 13, 14 and 22 of Writ Petition No. 54934 of 2006 which read as under : “12. That on 4th April, 2005 the Committee of Management has sent requisition for five(5) posts of Assistant Teacher, L.T. Grade, out of which there were two(2) posts for Assistant Teacher, L.T. Grade (English). A true copy of the requisition dated 4-4-2005 sent by the Committee of Management is being filed herewith and marked as Annexure-5 to this writ petition. 13. That in pursuant to the aforesaid requisition sent by the Committee of management, two (2) persons namely Sri Narayan Dutt Sharma Son of Sri Ram Ashrey Sharma and Bhagwat Saran son of Sri Ram Kumar have joined in the institution on 17-5-2006 on the post of Assistant Teacher, L.T. Grade (English). 14. That now one Sri Promod Kumar Singh/respondent No. 5 has been sent in the institution on the post of Assistant Teacher, L.T. Grade (English) vide order dated 8-9-2006 passed by the DIOS. A true copy of the order dated 8-9-2006 passed by the DIOS is being attached herewith and is being marked as Annexure 6 to this writ petition. 22. That now one Sri Promod Kumar Singh/respondent No. 5 has been sent in the institution on the post of Assistant Teacher, L.T. Grade (English) vide order dated 8-9-2006 passed by the DIOS. A true copy of the order dated 8-9-2006 passed by the DIOS is being attached herewith and is being marked as Annexure 6 to this writ petition. 22. That the Authorized controller is fully aware that the selection of the respondent No. 5 is without any advertisement and requisition, hence he has sought guidance from the DIOS, but till today the DIOS has not given any guidance, but he is pressurising the Authorised Controller to permit the respondent No. 5 to join in the institution, copy of letter dated 20-9-2006 is being filed herewith and marked as Annexure-7 to this writ petition. As O.P. Awasthi was only aggrieved with the appointment of P.K. Singh, therefore he did not raise any grievance in the above Writ Petition No. 54934/06 against the appointment of N.D. Sharma and Sri Bhagwat Saran. However, no interim order was passed in the said writ petition No. 54934/06 and simply notices were issued. 8. Thereafter a complete somersault was made by O.P. Awasthi and he filed another Writ Petition No. 60991 of 2006 now, challenging the appointment of N.D. Sharma and Bhagwat Saran, who too were also appointed as Assistant Teachers in the college, in pursuance to the recommendation of the Board made under the Act1982 and the Rules made thereunder. This writ petition No. 60991/06, primarily was filed on the ground that selected candidates cannot be adjusted against the vacancies which have not been advertised. In a nutshell, the issue before the Court was with regard to the adjustment of teachers empanelled in a particular institution against the vacancies, which subsequently have become available in other institution and have not been advertised. This Court on 8-11-2006 passed the following interim order : “Hon Arun Tandon, J. Standing counsel accepts notice on behalf of respondents No. 1, 3 and 4. Respondent No. 2 is represented by Sri A.K.Yadav, Advocate. Issue notice to respondents No. 5, 6 and 7 fixing 21-11-2006 as the date of appearance. Petitioner to take steps by speed post i.e. 14-11-2006. Respondent No. 2 is represented by Sri A.K.Yadav, Advocate. Issue notice to respondents No. 5, 6 and 7 fixing 21-11-2006 as the date of appearance. Petitioner to take steps by speed post i.e. 14-11-2006. The issue with regard to the adjustment of teachers empanelled for a particular institution against vacancies, which have subsequently become available in other institutions and which have not been advertised, is already engaging attention of this Court in Writ Petition No. 46861 of 2005. On the next date fixed respondent No. 2 shall produce all the original records on the basis whereof the order dated 26-10-2006 has been issued. Division Bench of this Court has already held that a selected candidate cannot be adjusted against a vacancy which has not been advertised. Petitioner has made out a prima facie case for grant of interim order. Till the next date of listing, no further action shall be taken in pursuance to the letter of the Manager/Principal of the institution dated 18-5-2006 and dated 14-2-2006 nor the respondent Nos. 6 and 7 shall be paid their salary without leave of the Court. List on 21-11-2006. Sd/ Arun Tandon, J. 8-11-2006" 9. O.P. Awasthi after the passing of the order dated 8-11-2006 was permitted to re-join the college nearly after a lapse of one year by an order dated 1-8-2007, therefore, Bhagwat Saran filed a Writ Petition No. 44499/07 and challenged the said order dated 1-8-2007. 10. Learned counsel for O.P. Awasthi has submitted that although requisition was made for the post of three LT Grade teachers in English, the Board preferred to advertise only one post in LT Grade (English) and on the said post, P.K. Singh, was appointed on the basis of the recommendation of the Selection Board. It was further submitted that N.D. Sharma and Bhagwat Saran were selected on the basis of another advertisement issued in the year 2004 and were allocated different colleges, however for some reasons they could not join those colleges and consequently were adjusted in the present College wherein the petitioner was working as an adhoc teacher. 11. It was further submitted that N.D. Sharma and Bhagwat Saran were selected on the basis of another advertisement issued in the year 2004 and were allocated different colleges, however for some reasons they could not join those colleges and consequently were adjusted in the present College wherein the petitioner was working as an adhoc teacher. 11. Elaborating his argument learned counsel for O.P. Awasthi, has argued that the respondents No. 6 and 7 could not be adjusted in the college, since the advertisement was made by the Board only for one post of LT Grade teacher in English, against which P.K. Singh was appointed on 8-9-2006, therefore, N.D. Sharma and Bhagwat Saran could not be appointed in the college on the post of Assistant teacher in L.T. Grade (English) as no advertisement was ever made in respect of two remaining posts of Assistant teachers in L.T. Grade (English), although the requisition was sent by the College to the Board through DIOS. 12. Learned counsel for the petitioner has also placed reliance on the judgment of this Court in Santosh Kumar v. State of U.P., 2006 (4) ESC 2786 (All), wherein it has been held that the Selection Board constituted under 1982 Act cannot with the aid of Government order dated 12-3-2001, order for adjustment in respect of vacancies, which has been intimated and notified but not advertised. 13. On the other hand learned counsel for N.D. Sharma and Bhagwat Saran, who have been impleaded as respondents No. 6 and 7 in Writ Petition No. 60991 of 2006, has submitted that the petitioners in pursuance of recommendation made by the Selection Board, joined the services on the post of Assistant Teacher, LT Grade (English) on 14-2-2006 and 18-5-2006 respectively in the college and started discharging their duties. O.P. Awasthi himself in Writ Petition No. 54934 of 2006 justified the appointment of N.D. Sharma and Bhagwat Saran on the post of Assistant teacher, LT Grade (English), in the college. 14. To further substantiate his argument learned counsel has also referred to paragraphs 12, 13, 14 and 15 of the writ petition No. 5493 of 2006, as noted herein above and has submitted that O.P. Awasthi in Writ Petition No. 54934 of 2006 had only challenged the appointment of P.K. Singh. 14. To further substantiate his argument learned counsel has also referred to paragraphs 12, 13, 14 and 15 of the writ petition No. 5493 of 2006, as noted herein above and has submitted that O.P. Awasthi in Writ Petition No. 54934 of 2006 had only challenged the appointment of P.K. Singh. However, in subsequent Writ Petition No. 60991 of 2006 he took a complete U-turn and also challenged the appointments of N.D. Sharma and Bhagwat Saran on the ground that they could not be appointed in the college in the absence of advertisement, although they have been selected by the Selection Board on the basis of the vacancies notified and intimated by the management. 15. Learned counsel for the private respondents has further argued that after the appointment of P.K. Singh on 8-9-2006, the services of O.P. Awasthi came to an end on 8-9-2006, however, O.P. Awasthi without any legal right or locus standi filed the Writ Petition No. 60991/06 on 21-10-2006, wherein an interim order dated 8-11-2006 was passed only to the effect that no further action shall be taken in pursuance to the letter of Manager/Principal of the institution dated 18-5-2006 and 14-2-2006 nor the respondents No. 6 and 7 shall be paid salary without the leave of the Court. It has been further submitted that the interim order dated 8-11-2006 did not entitle O.P. Awasthi to re-join the post in the college, but still the College authorities granted undue indulgence and permitted O.P. Awasthi to re-join the college on 1-8-2007, nearly after a lapse of one year of the cessation of his employment due to the appointment of P.K. Singh on the recommendation of the Selection Board. 16. It has been further argued that the judgment passed in Writ Petition No. 46861 of 2006, Satish Kumar and others v. State of U.P. and others, came up for consideration in Jagdish Prasad Tiwari v. State of U.P. and others (supra) reported in 2007(2) ESC 812 (All), wherein the question arose before this Court as to whether the judgment passed in Satish Kumar v. State of U.P. (supra) was retrospective or prospective in nature. In the said judgment it has been held that the decision in Satish Kumar (supra) will govern the law prospectively and cannot be given retrospective effect. In the said judgment it has been held that the decision in Satish Kumar (supra) will govern the law prospectively and cannot be given retrospective effect. To substantiate his argument learned counsel has drawn my attention to paragraphs 6 and 7 of the judgment in Jagdish Prasad Tiwari (supra), which read as follows: “6. The learned counsel for the petitioner placed reliance upon a decision of a Division Bench of this Hon’ble Court in Satish Kumar v. State of U.P. others (Civil Misc. Writ Petition No. 46861 of 2005) in which it was held that an unadvertised vacancy of Lecturer in Intermediate college could not be filled up from those candidates who had been selected in an earlier selection and that such a candidate could not be adjusted in respect of a vacancy which had been intimated and notified but was not advertised. Relying upon the said judgment the learned counsel for the petitioner submitted that the vacancy of the post of Lecturer in History was never advertised. This fact has nowhere been alleged by the petitioner in the writ petition. However, the learned counsel for the Selection Board Sri R.P. Dubey fairly conceded that the appointment of Paresh Kumar Gupta was selected pursuant to an earlier selection. The learned counsel for the Selection Board submitted that these adjustments in vacancies, which were not advertised, was made pursuant to the judgment of this Court in the case of Smt. Savita Gupta v. State of U.P. and others, 2004 (5) ESC 264. The learned counsel submitted that the judgment in Savita Gupta case (supra) was over-ruled by the Division Bench in the case of Satish Kumar (supra). Unfortunately, the appointments was made bonafidely which could not be set aside merely because the said judgment has now been overruled by a Division Bench. 7. The Division Bench had passed the judgment on 22-9-2006 over ruling the decision of the learned Single Judge which was passed on 9-7-2004. The recommendation made by the Selection Board in favour of Paresh Kumar Gupta was made on 11-9-2004. Consequently, this Court is of the opinion that the appointment of Sri Paresh Kumar Gupta on the post of lecturer in History cannot be set aside on the ground that the appointment was made on a vacancy which was not advertised. The recommendation made by the Selection Board in favour of Paresh Kumar Gupta was made on 11-9-2004. Consequently, this Court is of the opinion that the appointment of Sri Paresh Kumar Gupta on the post of lecturer in History cannot be set aside on the ground that the appointment was made on a vacancy which was not advertised. This is on account of the fact that the recommendation made by the Selection Board in pursuance of a judgment of this Court. Even though the said judgment has been set aside by a Division Bench, in my view, the judgment of the Division Bench will govern the law prospectively and cannot be made with retrospective effect. Even otherwise the petitioner has neither challenged the appointment order of Paresh Kumar Gupta nor the recommendation of the Selection Board and, consequently the petitioner is not entitled for any relief in this regard. 17. Learned counsel appearing for P.K. Singh and the Selection Board have also supported the case of N.D. Sharma and Bhagwat Saran and have argued that O.P. Awasthi does not have any locus standi to challenge the appointment and further submitted that appointment of P.K. Singh, N.D. Sharma and Bhagwat Saran are in accordance with law. 18. Heard learned counsel for the parties and perused the record. 19. From the bare perusal of the requisition it is manifest that it was sent on 6-12-2005 by the Management notifying the vacancies of seven posts of Assistant teachers, LT Grade including three posts of Assistant teachers in LT Grade in English, however, advertisement was issued only for one post of Assistant teacher LT Grade (English) against which P.K. Singh was selected and appointed on 8-9-2006 on account of which services of O.P. Awasthi, who was merely appointed on adhoc basis, were terminated and he ceased to be in service as per terms and conditions of his appointment letter dated 6-7-1998. 20. N.D. Sharma and Bhagwat Saran in pursuance of the advertisement earlier made by the Selection Board in the year 2004 were duly selected in two different Colleges, but since due to some reasons they could not join the said colleges, therefore they were adjusted and were appointed on 14-2-2006 and 18-5-2006 respectively in the present college, however, O.P. Awasthi did not raise any objection at the time of their appointment. 21. 21. On being aggrieved by the order of the appointment of P.K. Singh, O.P. Awasthi filed a Writ Petition No. 54934/06 and challenged only the appointment of P.K. Singh and did not raise any grievance against N.D. Sharma and Bhagwat Saran. Infact, he justified and supported the appointment of N.D. Sharma and Bhagwat Saran in the said Writ Petition No. 54934/06 as it is quite evident from perusal of paragraphs 6, 8 and 9 of the above writ petition. When O.P. Awasthi failed to get the desired interim order from this Court, he took a complete U-turn and filed another Writ Petition No. 60991/06, wherein the appointments of N.D. Sharma and Bhagwat Saran were challenged on the ground that the adjustments were illegal, since no advertisement was made with respect to the posts on which they were selected. 22. The learned counsel for O.P. Awasthi has submitted that N.D. Sharma and Bhagwat Saran were empanelled for different institutions, but have been wrongly adjusted in the vacancy available in College, since no advertisement was made with respect to those vacancies, even though vacancies were intimated and notified by the Management to the Board. Learned counsel for O.P. Awasthi has placed further reliance on the judgment of this Court in Satish Kumar (supra). 23. It is true that in the case of Satish Kumar (supra), decided on 22-9-2006, it was held that U.P. Secondary Education Service Selection Board could not with the aid of Government order dated 12-3-2001 order for adjustment in respect of the vacancies which has been intimated and notified, but not advertised. The judgment came into consideration before a learned Single Judge in Jagdish Prasad Tiwari (supra) wherein it has been held that judgment of Division Bench will govern the law prospectively and not retrospectively. The said judgment was challenged in Special Appeal No. 1076 of 2007, however, the said Special appeal was dismissed by this Court on 27-8-2007. Therefore, the judgment passed in Jagdish Prasad Tiwari (supra) holding the judgment to be prospective, has been confirmed in aforesaid Special Appeal No. 1076/07 and has attained finality. The said judgment was challenged in Special Appeal No. 1076 of 2007, however, the said Special appeal was dismissed by this Court on 27-8-2007. Therefore, the judgment passed in Jagdish Prasad Tiwari (supra) holding the judgment to be prospective, has been confirmed in aforesaid Special Appeal No. 1076/07 and has attained finality. Admittedly, in the present case N.D. Sharma and Bhagwat Saran were appointed on 14-2-2006 and 18-5-2006, as Assistant teacher in LT Grade (English) in the college on the basis of recommendation of the Selection Board and the judgment in Satish Kumar (supra) was rendered on 22-9-2006, much after the appointment of Sri N.D. Sharma and Sri Bhagwat Saran, as such in view of the decision in Jagdish Prasad Tiwari (supra) which has been further confirmed in Special appeal, the appointment of N.D. Sharma and O.P. Awasthi cannot be questioned on the basis of judgment passed in Satish Kumar (supra). Therefore O.P. Awasthi, the petitioner in Writ Petition Nos. 60991/06 and 54934/06 cannot derive any advantage of the judgment in Satish Kumar (supra). 24. There is one more aspect of the matter which cannot be ignored that O.P. Awasthi himself in Writ Petition No. 60991/06 had challenged the appointment of P.K. Singh, wherein he conceded and justified the appointment of N.D. Sharma and Bhagwat Saran, but subsequently in Writ Petition No. 60991/06, he took a complete U-turn and justified the selection and appointment of P.K. Singh, but, however, challenged the appointment of N.D. Sharma and Bhagwat Saran, Flip-Flop stance has put him in a predicament and he cannot be permitted to wriggle out of his own admission and take two contradictory pleas. 25. It is also relevant to note that O.P. Awasthi was appointed as adhoc teacher under Act 1982 and Rules made thereunder till the candidate recommended by the Selection Board joins the post. Admittedly, all the three teachers namely Pramod Kumar, N.D. Sharma and Bhagwat Saran were duly selected candidates by the Selection Board and will get precedence over O.P. Awasthi, who was merely an adhoc teacher. 26. Admittedly, all the three teachers namely Pramod Kumar, N.D. Sharma and Bhagwat Saran were duly selected candidates by the Selection Board and will get precedence over O.P. Awasthi, who was merely an adhoc teacher. 26. Learned counsel for P.K. Singh and other selected candidates have strongly challenged the locus standi of O.P. Awasthi on the ground that the services of O.P. Awasthi were duly discharged and came to an end on 8-9-2006 when P.K. Singh was appointed in his place, whereafter he could not have been permitted to challenge the appointment of the selected candidates from the Board. Despite no specific order of this Court in Writ Petition No. 60991/06, the College authorities illegally permitted O.P. Awasthi to re-join the college on 1-9-2007, nearly after one year. 27. Once the services of O.P. Awasthi came to an end and was replaced by selected candidate Pramod Kumar Singh on 8-9-2006, he could not be permitted to re-join the post again after the lapse of one year, since he had lost his lien on the said post after the appointment of P.K. Singh, a duly selected candidate from the Board. Moreover. O.P. Awasthi had not even challenged the appointment of P.K. Singh in Writ Petition No. 60991/06 by which he was replaced in the college. 28. In view of the above discussions, Writ petition No. 54934/06 and Writ petition No. 60991/06 are hereby dismissed and Writ Petition No. 44499/07 is allowed and the authorities concerned are directed to permit N.D. Sharma and Bhagwat Saran to continue as Assistant teachers, LT Grade (English) in C.A.S. Intermediate College, Faridpur district Bareilly and the claim for salary and other benefits of N.D. Sharma and Bhagwat Saran may also be considered by the concerned authorities within a period of two months from the date of receipt of a certified copy of this order. ———