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Allahabad High Court · body

2010 DIGILAW 3084 (ALL)

SHIVANI GUPTA v. STATE OF U. P.

2010-10-05

KASHI NATH PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—The petitioner-respondent No. 6, Sushil Kumar Tiwari challenged the orders of appointment of Shivani Gupta, the respondent-appellant by the Deputy Secretary of U.P. Secondary Education Service Selection Board, Allahabad (in short, the Board), as Lecturer in Sociology in Bilhour Inter College, Bilhour dated 11.8.2008. She was selected by the Board in pursuance to the advertisement No. 2 of 2004 for the post of the Lecturer in Sociology. Shri Sushil Kumar Tiwari is claiming promotion on the post after it fell vacant on 30.6.2007. 2. Learned Single Judge found that Shivani Gupta was selected in pursuance to the advertisement No. 2 of 2004 by the Board. She was given placement in Yuvraj Dutt Inter College, Lakhimpur Kheri. There was no vacancy in the College in the year 2006, and thus she could not be given appointment. She filed a Writ Petition No. 227 of 2006 in Lucknow Bench of this Court, which was disposed of on 27.3.2006 with directions to consider her appointment on any vacancy in any College, and to decide her representation. She was adjusted in Sarvodaya Inter College, District Mau. Once again she could not be given appointment as there was no vacancy in that College also. The District Inspector of Schools, Kanpur Nagar thereafter informed the Board that there was a vacancy in Bilhar Inter College, Kanpur Nagar falling vacant on 30.6.2007 on the retirement of the incumbent on which she could be appointed. She was given placement by the Board and the Committee of Management allowed her to join, giving rise to the claim of Shri Sushil Kumar Tripathi to challenge the appointment, and for promotion on the post. 3. We have heard Shri Mangla Prasad Rai for the appellant. Learned Standing Counsel appears for the State respondents. Shri S.R. Singh appears for U.P. Secondary Education Service Selection Board. Shri Alok Dwivedi appears for Sri Shushil Kumar Tripathi-petitioner-respondent No. 6. 4. 3. We have heard Shri Mangla Prasad Rai for the appellant. Learned Standing Counsel appears for the State respondents. Shri S.R. Singh appears for U.P. Secondary Education Service Selection Board. Shri Alok Dwivedi appears for Sri Shushil Kumar Tripathi-petitioner-respondent No. 6. 4. Learned Single Judge has found that the amendment, by which sub rule (5) was added to Rule 13 of the U.P. Secondary Education Service Commission Rules, 1998 providing for intimation of names of selected candidates, the ratio of judgment in Satish Kumar v. State of UP and others, 2006 (4) ESC 2786 (All)(DB), is still applicable, and that the appointment could not be offered in pursuance to the advertisement No. 2 of 2004, on the post, which fell vacant on 30.6.2007, subsequent to the Advertisement and selections by the Board. Learned Single Judge quashed the impugned order dated 11.8.2008 and consequential orders dated 3.9.2008, 11.9.2008 and 12.9.2008, and has directed the Joint Director of Education, Kanpur Region, to consider the claim of Shri Sushil Kumar Tripathi for appointment as Lecturer in the institution by way of promotion and to pass appropriate order in accordance with the law within six weeks. 5. It is submitted by Shri Mangala Prasad Rai that sub rule (5) was added to Rule 13 of the U.P. Secondary Education Service Commission and Selection Board Rules, 1998, after the judgment in Satish Kumar’s case to overcome the difficulty faced by the candidates, who could not be appointed on the advertised vacant posts for variety of reasons, inspite of their selection by the Board. Sub rule (5) was added to adjust such candidates in any other vacancies notified to the Board, in any other institutions. Section 10 of the Act of 1982, and Rules 11 (1), 12 (1) and 13 including newly inserted sub rule (5) of the Rules of 1998, are quoted : “S.10. Sub rule (5) was added to adjust such candidates in any other vacancies notified to the Board, in any other institutions. Section 10 of the Act of 1982, and Rules 11 (1), 12 (1) and 13 including newly inserted sub rule (5) of the Rules of 1998, are quoted : “S.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 posts 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). ................................. R. 11. Determination and notification of vacancies.—(1) For the purposes 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, to the Board in the manner hereinafter provided. R. 12. Procedure for direct recruitment.—(1) The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in at least two daily newspapers, having wide circulation in the State, and call for the applications for being considered for selection in the proforma published in the advertisement. For the post of Principal of an Intermediate College or the Headmaster of a High School, the name and place of the institution shall also be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application. R.13. Intimation of names of selected candidates.—(1) The Inspector shall within 10 days of the receipt of the panel and the allocation of institution under Rule 12,- (i) notify it on the notice board of his office; (ii) intimate the name of selected candidate to the Management of the institution which has notified the vacancy, with the direction that, on authorization under resolution of the management, an order or appointment in the proforma given in Appendix “E” be issued to the candidate by registered post within 15 days of the receipt of the order or within such extended time, as may be allowed to him by the management, and also intimating him that on his failure to join within the specified time, his appointment will be liable to be cancelled; (iii) send an intimation to the candidate, referred to in clause (ii), with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management. (2) The Management shall comply with the directions, given under sub-rule (1) and report compliance thereof to the Board through the Inspector. (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 for fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board, and the provisions of sub-rules (1) and (2) shall mutatis mutandis apply. (4) The Joint Director shall monitor and ensure that the candidates selected by the Board joins the institution in the specified time and for this purpose, he may issue such direction to the Inspector he thinks proper. (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 School 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 School the Board shall allocate such candidate to another institution in a vacancy notified to the Board.” 6. This Court has held in Satish Kumar v. State of U.P. and others, 2006 (4) ESC 2786 (All) (DB), prior to the amendment and also in the subsequent judgments in Chandresh Nath Singh Baghel v. Bhagwan Singh Sisodia and others, 2008 (1) ESC 428 (All) (DB), as well as in the matter of appointment of Principal under a similar rule of U.P. Higher Education Service Selection Board Act, 1980 in Yagya Narain Shukla v. State of U.P. and others, 2009 (10) ADJ 182 (DB) and Raja Ram and another v. State of U.P. and others, 2009 (10) ADJ 585 , that appointment to a post can be made only after the posts have been declared vacant and have been advertised in accordance with the statutory procedure prescribed for selection. The vacancy can thereafter be filled up under the Rules of 1998, which requires the Board to determine and notify the vacancies under Rule 11 and by following a procedure for direct recruitment in Rule 12. 7. The Scheme of the Act and the Rules examined in all the aforesaid cases provides for determination of the vacancies before they are advertised for selections. The interpretation of Section 10 of the Act of 1982, and the Rules of 1998, serves the principles of equality of opportunity in employment guaranteed under Articles 14 and 16 of the Constitution of India. The post, which has not fallen vacant, and has not been notified, cannot be filled up by appointment of a candidate in respect of any previous advertisement and selections carried out by the Board. The post, which has not fallen vacant, and has not been notified, cannot be filled up by appointment of a candidate in respect of any previous advertisement and selections carried out by the Board. Sub rule (5) of Rule 13 was apparently inserted to overcome the difficulty where a candidate could not join in an allocated institution due to non-availability of vacancy or for any other reason. The words ‘any other reason’ have not been defined nor there is any explanation given to it in the Rules of 1998. In such case the District Inspector of Schools can recommend, as provided by sub rule (5), to the Board, for the adjustment of such candidate against any other vacancy notified to the Board in any other institution. The words ‘any other vacancy notified to the Board’ is used in past perfect tense. Sub rule (5) has been placed at the bottom of Rule 13 providing for intimation of names of selected candidate. The intimation has to be given for making placement and thus in that sense also the words ‘any other vacancy notified to the Board’ would mean a vacancy, which has been notified but could not be filled up. Any future vacancy in any institution, notified subsequent to the advertisement, cannot be filled up from such candidates as that vacancy was not made open for selections in accordance with the procedure prescribed under the Act and Rules. 8. In the present case learned Single Judge has correctly appreciated the legal position in holding that the post, which fell vacant on 30.6.2007, even if it was notified to the Board, could not be filled up by a candidate selected in pursuance to the advertisement No. 2 of 2004 (published on 28.11.2005) and empanneled on 19.1.2006. 9. The interpretation of the Rules as aforesaid will also avoid any complications with regard to the rights of any other persons on the vacancies by way of promotion or otherwise. 10. The Special Appeal is dismissed. 11. 9. The interpretation of the Rules as aforesaid will also avoid any complications with regard to the rights of any other persons on the vacancies by way of promotion or otherwise. 10. The Special Appeal is dismissed. 11. In view of the special facts and circumstances, we find it appropriate to observe that U.P. Secondary Education Service Selection Board will, in accordance with the interpretations given to the sub rule (5) of Rule 13 of the Rules of 1998, provide for appointment of the appellant Shivani Gupta in any other institution in which the vacancy was available and was notified prior to Advertisement No. 2 of 2004. —————