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2011 DIGILAW 824 (ALL)

DHARAM VIR SINGH v. STATE OF U. P.

2011-03-31

A.P.SAHI, F.I.REBELLO

body2011
JUDGMENT By the Court.—This appeal is by the senior most teacher in the lecturers grade of Saraswati Bal Mandir, Uchchatar Madhyamik Vidyalaya, Jaunpur claiming his entitlement to function as the ad hoc Principal of the Institution which is duly recognized and governed by the provisions of the U.P. Intermediate Education Act, 1921. 2. The appellant being unsuccessful before the learned single Judge has preferred this appeal also questioning the validity of the order dated 16.9.2010 whereby the District Inspector of Schools has called upon the Manager of the Institution to issue a letter of appointment to the respondent No. 6 treating him to have been validly selected against the post under the provisions of the U.P. Secondary Education [Services Selection Boards] Act, 1982 read with the U.P. Secondary Education Services Selection Board, Rules, 1998. 3. The challenge is on the ground that the respondent No. 6 had been empanelled at serial No. 2 in the select list in relation to a vacancy that occurred on 30th June, 2000 and was advertised under Advertisement No. 1 of the year 2002. It is urged that one Dr. Vijay Kumar Singh was placed at serial No. 1 in the panel and upon being selected he had been appointed and who continued on the post till 1st July, 2010 when he resigned. The contention therefore raised is that there was no occasion to have recommended the name of the respondent No. 6 who was at serial No. 2 in the panel as the panel had already exhausted and no semblance of any right existed so as to revive the said panel and direct the appointment of the respondent No. 6. on the post in question. 4. The learned single Judge rejected the said contention and held that the selected candidate at serial No. 1 namely Dr. Vijay Kumar Singh held the post by misrepresenting his qualification of experience. His selection was ultimately found to be void being ineligible for want of essential qualification and was accordingly cancelled on 9th July, 2010, hence the respondent No. 6 deserved to be appointed. Had the correct facts relating to the deficiency in qualification been taken notice of, the Board would never have selected Dr. Vijay Kumar Singh. His selection was ultimately found to be void being ineligible for want of essential qualification and was accordingly cancelled on 9th July, 2010, hence the respondent No. 6 deserved to be appointed. Had the correct facts relating to the deficiency in qualification been taken notice of, the Board would never have selected Dr. Vijay Kumar Singh. Consequently the respondent No. 6 who was next in the panel was illegally deprived of a valid appointment, hence, the order of the District Inspector of Schools directing the management to issue a letter of appointment did not suffer from any infirmity. The learned single Judge further held that the appointment of the selected candidate Dr. Vijay Kumar Singh at serial No. 1 was void as he did not possess the essential qualification of minimum experience of four years as desired under the rules, and therefore, it was non-est and the candidate at serial No. 2 namely the respondent No. 6 was lawfully entitled for being appointed. 5. The appellant has assailed the order on the same grounds as taken before the learned single Judge. Sri R.K. Ojha learned counsel for the appellant submits that the conclusion drawn by the learned single Judge is erroneous and he relies on certain decisions to substantiate the same. The contention raised is that the entire action was highly belated, inasmuch as, the respondent No. 6 had allegedly made a complaint on 14.7.2005 and then filed a writ petition after 4 years in the year 2009 for a decision on such a complaint. It is urged that neither there was any proof of the complaint being made nor was it entertainable after a lapse of three years of the selections nor was any writ petition entertainable for consideration of his request after a lapse of seven years of the selections. It is contended that any direction obtained by the respondent No. 6 to decide his representation would not be a sufficient explanation for the laches. It is urged that if the Board had cancelled the appointment of the selected candidate Dr. Vijay Kumar Singh then a vacancy had arisen, and such a substantive vacancy has to be readvertised and filled up de-novo under the provisions of the 1982 Act read with the 1998 Rules. The respondent No. 6 cannot be inserted on the said fresh vacancy which has arisen due to the departure of Dr. Vijay Kumar Singh. Vijay Kumar Singh then a vacancy had arisen, and such a substantive vacancy has to be readvertised and filled up de-novo under the provisions of the 1982 Act read with the 1998 Rules. The respondent No. 6 cannot be inserted on the said fresh vacancy which has arisen due to the departure of Dr. Vijay Kumar Singh. 6. Sri Ojha further submits that Dr. Vijay Kumar Singh had resigned on 1st July, 2010 as he had already been selected on 7th May, 2010 as a Lecturer in a Degree College where he has already been appointed. The resignation of Dr. Vijay Kumar Singh had been accepted by the Committee of Management on 4th July, 2010 and thus the vacancy had arisen even prior to the order of cancellation of his candidature by the Board. Consequently, the learned single Judge has committed an error by misconstruing these facts against the law laid down by this Court and having wrongly applied the same, the judgment deserves to be set aside. The contention therefore is that the empanelment of the respondent No. 6 did not continue endlessly beyond a reasonable time, and therefore, to allow him to join against the selections of the year 2002-03 was an illegal act on the part of the authorities which deserves to be set aside. Sri Ojha accordingly prays for quashing of the directions issued by the Board and the consequential order passed by the District Inspector of Schools dated 16.9.2010. 7. Sri Ashok Khare learned Senior Counsel assisted by Sri Vikas Budhwar for the respondent No. 6 submits that the appointment of Dr. Vijay Kumar Singh being a nullity was cancelled and that there was no delay or laches on the part of the answering respondent in moving the complaint. He submits that a complaint was made in the year 2005 and when no response was shown, the answering respondent filed Writ Petition No. 32294 of 2009 which was disposed of with a direction to the Board to examine the said complaint and pass an appropriate order. 8. He further submits that so far as the said selections under the Advertisement No. 1 of 2002 is concerned it had already been quashed by a Division Bench of this Court in Special Appeal No. 159 of 2001 and therefore there was no occasion for the answering respondent to have challenged the same at that point of time. 8. He further submits that so far as the said selections under the Advertisement No. 1 of 2002 is concerned it had already been quashed by a Division Bench of this Court in Special Appeal No. 159 of 2001 and therefore there was no occasion for the answering respondent to have challenged the same at that point of time. A special leave to appeal against the judgment of the Division Bench of this Court quashing the said selections under the advertisement of the year 2002 was preferred before the Apex Court where an order of status quo had been passed and ultimately the judgment of the Division Bench was set aside and challenge to the selections under Advertisement No. 1 of 2002 was rejected. 9. Consequently after the delivery of the judgment of the Apex Court on 16th May, 2008 the selections attained finality. He therefore contends that the laches stand explained and only thereafter the candidature of Dr. Vijay Kumar Singh had to be examined by the Board. 10. It is further submitted that any appointment de hors the provisions and contrary to the rules relating to qualification was void and he relies on the decision in the case of Pramod Kumar v. U.P. Secondary Education Services Commission and others, (2008) 7 SCC 153 and other judgments. Sri Khare therefore contends that the judgment of the leaned Single Judge on that score deserves to be sustained and the appointment of the answering respondent does not deserve any interference. The learned single Judge according to Sri Khare has rightly distinguished the judgment relied upon by the learned counsel for the appellant and there being no statutory bar for issuing such a letter of appointment after cancellation of the candidature of a person at serial No. 1, the order of the District Inspector of Schools dated 16.9.2010 is perfectly in order. 11. Learned counsel for the Board has also adopted the same arguments and so has the learned Standing Counsel. Accordingly, the matter is being disposed of finally at this stage itself with the consent of the parties. 12. 11. Learned counsel for the Board has also adopted the same arguments and so has the learned Standing Counsel. Accordingly, the matter is being disposed of finally at this stage itself with the consent of the parties. 12. The Institution being recognized under the 1921 Act is also governed by the provisions of the 1982 Act and the rules framed thereunder for the purpose of the selections of the Head of the Institution and the teachers and rules have been framed for observance by the Board for carrying out such selections. 13. The vacancy in the present case arose on 30th June, 2010 with the retirement of the permanent incumbent of the post of the Head of the Institution Sri Ram Lakhan Pandey. The said post was requisitioned and then duly notified for selection by the Board under the provisions of the 1982 Act and the Rules framed thereunder. The Board proceeded to hold the selections and drew a panel on 26th March, 2003 with Dr. Vijay Kumar Singh at serial No. 1 and the respondent No. 6 at serial No. 2. Ultimately Dr. Vijay Kumar Singh upon being selected was issued a letter of appointment. He joined on 12th May, 2003. 14. The said selections in which Dr. Vijay Kumar Singh had been selected and the respondent No. 6 was at serial No. 2 became subject matter of challenge on the ground of the advertisement being illegal and a large number of writ petitions were filed before this Court. A learned single Judge dismissed the writ petitions but on appeal a learned Division Bench of this Court reversed the same and held the entire selections under the aforesaid advertisement to be invalid. This became subject matter of consideration before the Apex Court in the case of Balbir Kaur and another v. U.P. Secondary Education Service Selection Board, Allahabad and others, 2008 (3) UPLBEC 2376 and the Apex Court reversed the order of the Division Bench and upheld the order of the learned single Judge thereby restoring the selections vide judgment dated 16th May, 2008. 15. Dr. Vijay Kumar Singh the selected candidate who had been appointed on 12th May, 2003 continued in the Institution and ultimately left the Institution on account of his selection in a Post Graduate Degree College on 7th May, 2010. 16. The intervening facts deserves to be noticed at this stage. 15. Dr. Vijay Kumar Singh the selected candidate who had been appointed on 12th May, 2003 continued in the Institution and ultimately left the Institution on account of his selection in a Post Graduate Degree College on 7th May, 2010. 16. The intervening facts deserves to be noticed at this stage. The respondent No. 6 who claims to have made a complaint in the year 2005 had filed writ petition No. 32294 of 2009 which was disposed of by this Court by the following Order: “Hon’ble V.K. Shukla,J. Contention of petitioner is that in the select list, which has been finalized for Saraswati Bal Mandir, Uchchatar Madhyamic Vidyalaya, Shastri Nagar, Jaunpur therein name of Sr. Vijay Kumar Singh, respondent No. 5 has been shown at Serial No. 1, whereas name of petitioner has been shown at Serial No. 2. Petitioner submits that Dr. Vijay Kumar Singh has succeeded in procuring appointment on the basis of forged and fictitious documents, inasmuch as he has drawn his salary from recognised Junior High School. In this regard petitioner has represented the matter before the authorities concerned on 14.9.2005, but till date no action has been taken. In these circumstances and in this background, liberty is given to petitioner to make fresh representation within three weeks from today alongwith certified copy of this order before the Secretary, Madhyamik Shiksha Sewa Chayan Board, Alenganj, Allahabad, who shall take appropriate decision in accordance with law after calling for the record from concerned authority, preferably within period of eight weeks from the date of production of certified copy of this order after providing opportunity of hearing to Dr. Vijay Kumar Singh. Whatever decision is taken, same be communicated to the petitioner. With these observations writ petition is disposed of. Dt.3.7.2009" 17. Consequently the matter was taken up and the selection Board called upon Dr. Singh to answer the same. An enquiry was made from the District Inspector of Schools on 27th March, 2010 about the experience certificate and related qualifications of Dr. Vijay Kumar Singh, as the complaint was, that the selected candidate did not possess the minimum requisite experience of four years that was desirable under the rules. 18. The Board proceeded to fix dates on 5th April, 2010 and 17th June, 2010 but Dr. Vijay Kumar Singh did not turn up to respond to the said queries made by the Board. 18. The Board proceeded to fix dates on 5th April, 2010 and 17th June, 2010 but Dr. Vijay Kumar Singh did not turn up to respond to the said queries made by the Board. On the other hand Dr. Vijay Kumar Singh tendered a resignation on 1st July, 2010 which came to be accepted by the Committee of Management on 4th July, 2010. Oblivious of these facts, as Dr. Vijay Kumar Singh had not sent any information to the Board, the Board proceeded to pass an order on 9th July, 2010 holding that the experience as claimed by Dr. Vijay Kumar Singh was manipulated and since he was short of the required qualifications of experience, therefore his selection was invalid and was accordingly cancelled. 19. The appellant contends that he being the senior most teacher of the Institution is entitled to function as the Head of the Institution with the departure of Dr. Vijay Kumar Singh. The respondent No. 6 appears to have approached the Board and the Board issued directions for his appointment as he was at serial No. 2 in the panel that had been drawn up with Dr. Vijay Kumar Singh at serial No. 1. This action was proposed in view of the provisions of the 1998 Rules that have been referred by the District Inspector of Schools while complying with the directions under the order dated 3.7.2009. 20. As noted above the selection and appointment is governed by a procedure prescribed under the 1998 rules Rule 5 prescribes the academic qualification and Rule 12 prescribes the procedure to be followed for carrying out the selections on the post of the Head of the Institution including allotment of marks. “Rule 5. Academic qualification.—A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1 of Chapter II of the Regulations made under the Intermediate Education Act, 1921.” “Rule 12. Procedure for direct recruitment.— (5). The Board shall in respect to the selection for the post of Head Master and Principals, allot the marks in the following manner: (i) 60% marks on the basis of quality points specified in Appendix ‘D” (ii) 16% marks for having experience more than the required experience in the manner that 1% marks shall be awarded for each year of such experience, subject to maximum 2% marks. (iii) 2% marks for research paper published in reputed journals in the matter that 1/2% marks shall be allotted for each such research paper subject to maximum 2% marks. (iv) 7% marks for having Doctorate degree or 30% for Master of Education (Med) provided that only one degree shall be considered under this clause. Note- For the purpose of calculating experience the service rendered as Headmaster of Junior High Schools or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Headmaster and for selection of Principal, the service rendered as Headmaster of a High School or as a lecturer shall only be counted. (v) The Board shall hold interview of the candidates and 15% marks shall be allotted for interview, Marks in the interview shall be divided in the following manner. (a) 6% marks on the basis of subject/general knowledge (b) 4% marks on the basis of personality test; (c) 5% marks on the basis of ability of expression]” 21. Rule 12 (8) which prescribes the method of preparation of a panel is quoted here under: “Rule 12(8).- The Board then, for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under sub-clause (4) or sub-clause (5) above, as the case may be, with the marks obtained in the interview. The panel for the post of Principal or Head Master shall be prepared institution-wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for the posts in the lectures and trained graduates grade, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks, the name of candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of candidate who is older in age shall be placed higher in the panel for the post of Principal or Head Master, the number of names shall be three times of the number of vacancy and for the post of teachers in the lecturers and trained graduates grade, it shall be large (but nor larger than twenty-five per cent) than the number of vacancies.” 22. Rule 13 (3) provides for a power on the Inspector to initiate a fresh name standing next in order of merit in the panel, if the candidate above him does not join. The Rule 13 (3) is quoted below: “Rule 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 provisions of sub-rules (1) and (2) shall mutatis mutandis apply.” 23. Thus, from the scheme of the provisions, it is evident that the selection has to be carried out in the procedure prescribed thereunder. 24. In the instant case Dr. Vijay Kumar Singh was selected and appointed and he ultimately resigned. On the other hand it is also the case of the respondent that his selection itself was cancelled on the ground of his ineligibility which strikes at the root of the very authority of the Board to treat him to be a valid candidate. It is correct to say that the Board could have proceeded to cancel the selection on the ground of ineligibility, but the issue involved in the present case is as to whether after such cancellation, the candidate who was at serial No. 2 after 8 years of the advertisement, could have been given appointment. The right of the respondent No. 6 to claim selection and appointment would accrue, if the panel continues to survive after 8 years. It is correct that the advertisement itself was subject matter of litigation upto the apex Court but the respondent No. 6 was also sailing in the same boat. The selections as per the Advertisement No. 1 of 2002 had been annulled by the Division Bench of this Court and which was restored only in the year 2008. The candidate at serial No. 1 admittedly had joined on 12th May, 2003. The panel therefore would not endure unendingly. The selections as per the Advertisement No. 1 of 2002 had been annulled by the Division Bench of this Court and which was restored only in the year 2008. The candidate at serial No. 1 admittedly had joined on 12th May, 2003. The panel therefore would not endure unendingly. The respondent No. 6 had not attempted to assail the division bench judgment before the Apex Court, inspite of the fact that the selection in which he was placed at Serial No. 2 had been annulled. 25. We agree with the view expressed by a Division Bench in the case of Jag Mohan Singh v. State of U.P. and others, 2006(4) ADJ 153 (DB) Paragraph 9 where it has been held that once a person had joined then in all ordinary circumstances the same is to be treated as a completion of the selection process. The respondent No. 6 had not challenged the selection and appointment of Dr. Vijay Kumar Singh before this Court. 26. He alleges that he moved a representation in 2005 which is not established on record but he filed a writ petition only in the year 2009 which was 8 years after the selections. The Board did not advert itself to the fact of resignation of Dr. Vijay Kumar Singh as it appears to have not been informed about it or even otherwise it did not proceed to examine the issue of the panel surviving after the annulment and cancellation of the candidature of Dr. Vijay Kumar Singh. 27. The Board, in our opinion, proceeded erroneously without addressing itself to the aforesaid issues and hence, the mechanical issuance of directions and its compliance by the District Inspector of Schools on 16th September, 2010 are not firmly grounded in law. 28. The first issue which the Commission ought to have taken notice of, is the life of the panel which was drawn up in the year 2003 under the 1998 Rules which have been quoted herein above, the same does not provide for the life of a panel. It has therefore to be construed reasonably to allow the selection process to conclude the appointment of the selected candidate in accordance with the procedure prescribed therein. The time prescribed for the joining of a candidate under the rules has been indicated under Rule 13 of the 1998 Rules. It has therefore to be construed reasonably to allow the selection process to conclude the appointment of the selected candidate in accordance with the procedure prescribed therein. The time prescribed for the joining of a candidate under the rules has been indicated under Rule 13 of the 1998 Rules. Rule 13 requires the Inspector of Schools to notify the selection within 10 days of the receipt of the panel from the Board. The Inspector has to simultaneously intimate the Management of the Institution to issue a letter of appointment under a resolution of the Management in the proforma given in Appendix-E to be issue to the candidate by registered post within 15 days of the receipt of intimation. The same rule also requires that the candidate is under an obligation to join within fifteen days or within such extended time as may be allowed to him by the Management. There is a further caveat in the said rule that if the candidate fails to join within the specified time, his appointment will be liable to be cancelled. An intimation has to be given to the candidate to report within 15 days upon receipt of the letter of appointment. The Management is obliged to comply with such directions. Sub Rule -1 and Sub Rule-2 of Rule 13 of the 1998 Rules are quoted below: “13. An intimation has to be given to the candidate to report within 15 days upon receipt of the letter of appointment. The Management is obliged to comply with such directions. Sub Rule -1 and Sub Rule-2 of Rule 13 of the 1998 Rules are quoted below: “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 of appointment in the pro forma 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 direction, given under sub-rule (1) and report compliance thereof to the Board through the Inspector.” 29. It is only when the candidate fails to join within the time so prescribed or the extended time that the Inspector can on the request of the Management intimate a fresh name of the candidate standing next in order of merit. Sub Rule 3 of Rule 13 of the 1998 Rules has already been extracted hereinbefore. 30. A perusal of this provision, therefore, demonstrates that the time period for the joining of a candidate has been prescribed but there is nothing to indicate about the longevity of the panel in the rules. This appears to have been done with a view to allow the selected candidates to have their appointments crystallized, and to prevent any abuse of unnecessary blocking of appointments after selections by either the Management or by any unscrupulous candidate. This appears to have been done with a view to allow the selected candidates to have their appointments crystallized, and to prevent any abuse of unnecessary blocking of appointments after selections by either the Management or by any unscrupulous candidate. At the same time the period so prescribed in the rules also indicates that the selections should be given effect to immediately within the shortest possible time. A reasonable period would therefore have to be construed in the light of the aforesaid rules. The exception which has to be carved out may be illustrated with the help of such matters where any judicial intervention has taken place or the panel was held up on account of any legal impediment. Such a period which was beyond the control of the candidate or the Commission has to be excluded for construing a reasonable period. This exception would therefore be dependent on the facts of each case. 31. In the instant case the legal impediment that arose was in the passage of the entire panel in which Dr. Vijay Kumar Singh was at serial No. 1, as the entire advertisement was under challenge which ended up with the decision of the Apex Court in Balbir Kaur’s case (supra). The entire panel was therefore in jeopardy throughout the said period and in such a situation where the advertisement had been annulled by the High Court that was subsequently revived by the Supreme Court, it cannot be said that the selections had become final. The panel itself was facing legal scrutiny and the selections were in an undecided state. This inconclusive state of affairs continued till 2008. This is because, had the judgment of the division bench been upheld by the Apex Court, there would have been no valid selections and the entire selections would have to be held afresh. This indecisive state therefore did not allow the select panel to attain finality till 2008. The issue therefore relating to a reasonable period being construed, in such circumstances will necessarily have to exclude the period of litigation that impeded any finality to the select panel. It is only thereafter that the respondent No. 6 appears to have filed a writ petition before this Court where a direction was issued to examine the validity of the qualification of Dr. Vijay Kumar Singh as both of them were sailing in the same boat. 32. It is only thereafter that the respondent No. 6 appears to have filed a writ petition before this Court where a direction was issued to examine the validity of the qualification of Dr. Vijay Kumar Singh as both of them were sailing in the same boat. 32. The panel in the ordinary course stood exhausted in view of the decision in the case of Jagmohan Singh (supra). Further the same view has been taken by another Division Bench in the case of Chandresh Nath Singh Baghel v. Bhagwan Singh Sisodia and others, 2008 (1) ESC 428 . It has been held therein that once the candidate empanelled at the top of the list joins, then the panel for all practical purposes stand exhausted. It has further been held that the panel would continue only if the candidate at serial No. 1 does not join so as to enable the next candidate in order of merit to obtain appointment. Otherwise the panel exhausts automatically. The Division Bench opined as follows in Para 21 quoted herein under: “Para 21. So far as the life of select panel is concerned as provided for under the U.P. Commission Rules, suffice it to point out that the said valid select list is only for the purpose of offering appointment to the candidates in order of merit only if the person higher in merit does not join the post and once the empanelled candidate joins in accordance with his merit, the remaining select panel would exhausts itself automatically and the remaining panel cannot be said to have a life beyond the purpose for which it was prepared, therefore, no shelter can be taken by a person in the select list/waiting list behind the provision which prescribes the life of the select panel as one year.” 33. It is to be clarified at this stage that the aforesaid decision was not dealing with a case where the candidate at serial No. 1 was disqualified or ineligible or the appointment was a result of nay deceit. Following the ratio of a large number of decisions referred to therein, the Court concluded that the panel is meant only to accommodate such people against vacancies which were subject matter of advertisement and not in relation to future vacancies. 34. The learned single Judge has distinguished the said decision in the impugned judgment on the ground that the appointment of Dr. 34. The learned single Judge has distinguished the said decision in the impugned judgment on the ground that the appointment of Dr. Vijay Kumar Singh was void and therefore it was not a valid selection in the eyes of law at all. The learned single Judge has held that if the appointment of Dr. Vijay Kumar Singh was a result of deceit and manipulation, the Commission could not have selected him and in such a situation the right of the candidate who was next in order of merit namely the respondent No. 6 was rightly acknowledged. 35. To deal with this issue the fact remains that Dr. Vijay Kumar Singh did not respond to the notice sent by the Board for proving his eligibility. The contention on behalf of the appellant is that Dr. Vijay Kumar Singh had already resigned before the order of cancellation was passed. The learned single Judge does not appear to have entered into this controversy which in our opinion was necessary to determine the impact of such a resignation. For this it was also necessary to examine the provisions relating to resignation by an employee or a teacher as contained in Regulations 29 and 30 of Chapter III which are quoted herein under: ^^29- dksbZ deZpkjh uksfVl nsdj vFkok mlds cnys esa osru nsdj ftlds fy, og izcUèk }kjk mldh lsok;sa lekIr fd;s tkus dh fLFkfr esa vf/kdkjh gksrk R;kx i= ns ldrk gSA izfrca/k ;g gS fd & ¼1½ dksbZ deZpkjh tuojh] Qjojh rFkk ekpZ ds ekl esa lekIr gksus okyk uksfVl ugha nsxkA ¼2½ xzh"ekodk’k uksfVl dh vof/k esa lfEefyr dj fy;k tk;sxkA ¼3½ jktdh; lsok vFkok fdlh LFkkuh; fudk; dh lsok dh fu;qfDr gsrq pqus x, deZpkjh dks vko’;d uksfVl nsus dh vko’;drk u gksxh vkSj mls ubZ fu;qfDr esa dk;ZHkkj xzg.k djus ds fy, le; ls viuh lsok ls R;kx&i= nsuk gksxk ;fn in ds fy, mfpr lkj.kh ls izkFkZuk&i= fn;k x;k gSA mijksDr izkfo/kku fyfid] ftlesa iqLrdky;k/;{k Hkh lfEefyr gS] ij ykxw gksaxs fdUrq prqFkZ oxhZ; deZpkfj;ksa ds lEcUèk esa mijksDr izfrcU/kkRed [kaM ds izkfo/kku ykxw ugha gksaxsA ¼4½ izfrca/k lfefr dks ;g vf/kdkj gksxk fd uksfVl ds nkos esa NwV ns nsaA 30- fdlh deZpkjh dks R;kx i= nsus dh vuqefr ugha feysxh ;fn mlds fo:) vuq’kklukRed dk;Zokfg;ka vfuf.kZr gSa tc rd fd mls izcU/k lfefr }kjk ,slk djus dh fo’ks"k vuqefr ugha izkIr gks tkrh gSA^^ 36. The learned single Judge or the Board does not appear to have gone into this issue as contended by the learned counsel for the appellant. Dr. Vijay Kumar Singh tendered his resignation on 1st July, 2010 which is alleged to have been accepted by the Management on 4th July 2010. The cancellation order has been passed on 9th July, 2010 without any knowledge of the said resignation as Dr. Vijay Kumar Singh had been intimated the same by filing a reply before the Board. 37. This aspect ought to have been gone into, inasmuch as, if a selected candidate resigns, then a fresh vacancy comes into existence. The resignation in this case is alleged to have been made and accepted by the Management prior to the cancellation order passed by the Board. The impact of such a step having been allegedly taken by Dr. Vijay Kumar Singh therefore required a scrutiny as in the event the resignation is final, then the vacancy had already come into existence for which a fresh selection had to be made. 38. On the other hand if the appointment is treated to be void, then in such a situation, there is no valid selection in the eyes of law as held by the learned single Judge. This entire process has taken a period of almost seven years since the selections were notified by the Board in which the respondent No. 6 was placed at Serial No. 2. Dr. Vijay Kumar Singh has already disappeared from scene under the aforesaid circumstances as he had been selected as a teacher in another institution elsewhere, and therefore, to investigate any issue relating to him further would be a futile exercise. The only question that is now left to be considered is the eligibility of the respondent No. 6 to claim appointment on the strength of the panel which was drawn up in the year 2003. 39. The purpose of selections is no doubt to allow an eligible and qualified candidate highest in merit to occupy the post of the head of the institution. A person who is ineligible or unqualified, if succeeds in receiving appointment through deceit and manipulation, has no right to hold the post and his appointment would therefore be void as held by the learned single Judge. A person who is ineligible or unqualified, if succeeds in receiving appointment through deceit and manipulation, has no right to hold the post and his appointment would therefore be void as held by the learned single Judge. Nonetheless even a void act requires a declaration which in the instant case has taken place with the order of the Board on 9th July, 2010. The selection and appointment of respondent No. 6 would not ipso facto become non-est unless it is cancelled. 40. To further construe this process of selection, the selections were held by the Board validly constituted, and the proceedings were not coram-non-judice. The selection process adopted was a valid process. The selected candidate Dr. Vijay Kumar Singh misrepresented his qualifications by an alleged act of deceit and manipulation. This by itself will not invalidate the entire selection process and it is the candidature of Dr. Vijay Kumar Singh which deserved to be annulled. The situation would have been different had the Board itself or on any complaint having been made, set aside the selection of Dr. Vijay Kumar Singh when the panel was declared placing him at Serial No. 1. What followed thereafter was the setting aside of the advertisement itself by the Division Bench of the High Court. This resulted in annullment of the entire selections on a different ground altogether and as such there remained nothing to be set aside. The situation transformed only after the judgment of the Supreme Court in Balbir Kaur’s case that restored the select panel. 41. It is only thereafter that the correctness or otherwise of the candidature of Dr. Vijay Kumar Singh was raised. This led to the passing of the order on 9th July, 2010 by the Board cancelling the selection of Dr. Vijay Kumar Singh. The said selection was held to be a nullity by the learned single Judge. In the instant case, once the experience of four years which was lacking in Dr. Vijay Kumar Singh was sought to be supplemented by manipulation and deceit, the appointment becomes a result of fraud and misrepresentation. Any such act would therefore render the selection a nullity. In such a situation, there is no room for doubt that the selection or appointment of Dr. Vijay Kumar Singh was void. 42. Vijay Kumar Singh was sought to be supplemented by manipulation and deceit, the appointment becomes a result of fraud and misrepresentation. Any such act would therefore render the selection a nullity. In such a situation, there is no room for doubt that the selection or appointment of Dr. Vijay Kumar Singh was void. 42. Once having arrived at the said conclusion the only issue that survives is, what should be the consequence of such a declaration. The learned single Judge has found the respondent No. 6 to be entitled to be appointed as he had been illegally deprived of his claim on account of such deceit and manipulation on the part of the candidate placed at Serial No. 1. 43. A division bench of this Court in the case of Rakesh Kumar Tiwari v. Deen Dayal Upadhyay Gorakhpur University and others, 2011 (2) ADJ 246 (DB), while dealing with an appointment in an University, where also the life of the panel was not defined, discussed the impact of two judgments of the apex Court, namely, Purushottam v. Chairman M.S.E.B. and another, (1999) 6 SCC 49 and State of U.P. v. Ram Swarup Saroj, 2000 (3) SCC 699 and held that a candidate who was in the select panel at serial No. 2, was entitled to be appointed if it was ultimately found that the candidate at serial No. 1 was ineligible and unqualified. The reason given was that the appointment and selection of the candidate at serial No. 1 was void. However from a perusal of Paragraphs 22 and 23 of the decision in the case of Rakesh Kumar Tiwari (supra) and the facts set out in Paragraphs 18 and 19 thereof, it is evident that in the said case the appointment of the candidate at serial No. 1 was challenged on the very next day of the selection and appointment through a writ petition and the High Court passed an order that the appointment on the post of Lecturer shall be subject to the decision of the writ petition. It was further held that merely because the selected candidate, who was the respondent therein, had worked for six years, the same would not impede the right of the candidate at serial No. 2 to claim appointment in view of the legal principle as adopted by this Court in the said decision in Paragraphs 22 and 23 thereof. 44. It was further held that merely because the selected candidate, who was the respondent therein, had worked for six years, the same would not impede the right of the candidate at serial No. 2 to claim appointment in view of the legal principle as adopted by this Court in the said decision in Paragraphs 22 and 23 thereof. 44. Apart from this, it is to be noticed that the decision in the case of State of U.P. v. Ram Swarup Saroj (supra) which was considered by the division bench, there also the aggrieved candidate at serial No. 2 had filed the writ petition within one year before the expiry of the period of panel. The ratio of the aforesaid decision, therefore, rests on the facts of the said case where a prompt and immediate challenge was raised to the alleged illegal appointment. The said cases therefore do not come to the aid of the respondent No. 6 herein for the reasons given hereinabove and hereinafter. The decisions relied upon by the learned counsel for the respondents and as discussed by the learned single Judge, therefore, cannot create a right of selection and appointment on account of the inordinate delay and the panel having lapsed. 45. In the instant case the respondent No. 6 does not appear to have filed any writ petition challenging the selection of Dr. Vijay Kumar Singh. He came up with a case that he had probably represented the matter in the year 2005 and then he filed a writ petition in the year 2009. On the direction issued by the writ Court, when no action was taken a contempt was filed, whereupon the Selection Board passed the order accepting the claim of the respondent No. 6 after calling for a report from the Basic Education Officer on 2nd July, 2010 in relation to the qualification of experience of Dr. Vijay Kumar Singh. This conduct of the respondent No. 6 of sitting on the fence and not challenging the appointment of Dr. Vijay Kumar Singh for a fairly long period indicates that he had surrendered all hopes as he did not even join in the litigation that went up to the Supreme Court. 46. Needless to repeat, the division bench of this Court had annulled the entire advertisement, the panel whereof had been drawn up and the respondent No. 6 was also part of the same panel. 46. Needless to repeat, the division bench of this Court had annulled the entire advertisement, the panel whereof had been drawn up and the respondent No. 6 was also part of the same panel. If the respondent No. 6 wanted his claim to be considered as against that of Dr. Vijay Kumar Singh, he could have maintained his own petition before this Court by challenging the select panel on the ground that Dr. Vijay Kumar Singh was not qualified. This exercise he undertook by approaching this Court in the year 2009 after the selections and appointments were held to be valid by the apex Court in Balbir Kaur’s case (supra). The respondent No. 6, therefore, in our opinion, had acquiesced to the said situation. The panel having exhausted itself, the only course left open to the Board was to have held fresh elections and there was no occasion to revive the claim of the respondent No. 6. 47. Accordingly, the appeal is partly allowed and the judgment of the learned single Judge dated 22.10.2010 in so far as it upholds the appointment of the respondent No. 6 is set aside. The order of the District Inspector of Schools 16.9.2010 and the recommendation of the Board for appointing respondent No. 6 are hereby quashed. The Board shall now proceed to advertise the post of Principal of Saraswati Bal Mandir, Uchchatar Madhyamik Vidyalaya, Jaunpur afresh and hold selections accordingly. —————