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2012 DIGILAW 177 (ALL)

Shailendra Singh v. State of U. P.

2012-01-18

DEVENDRA KUMAR UPADHYAYA

body2012
JUDGMENT Devendra Kumar Upadhyaya, J. By means of the present writ petition, the petitioner, who was appointed on ad hoc basis as Assistant Teacher (Biology) in Sri Bheemsen Inter College, Badgaon, District Chhatrapati Sahuji Maharajnagar, has challenged the order dated 12.11.2010 by which the District Inspector of Schools, Chhatrapati Sahuji Maharajnagar has directed the Committee of Management of the said institution to issue appointment letter in favour of respondent no.7 for appointing him on the post of Assistant Teacher (Biology) i.e. on the post being occupied in ad hoc capacity by the petitioner. 2. Since in this case affidavits have been exchanged, with the consent of parties' counsel, the Court proceeds to decide it finally. 3. While challenging the impugned order dated 12.11.2010 containing the directions to the Committee of Management for issuance of appointment letter and joining of the respondent no. 7 in the institution aforesaid as Assistant Teacher (Biology), learned counsel for the petitioner has submitted that since the requisition for filling up the vacancy in question was sent by the Committee of Management through the District Inspector of Schools to the U.P. Secondary Education Services Selection Board (hereinafter referred to as 'Selection Board') treating the vacancy as reserved for Scheduled Caste and the respondent no.7 whose placement has been sought to be made by the impugned order dated 12.11.2010 does not belong to the reserved category of Scheduled Caste as such the placement order or any such directions for issuance of appointment order in favour of the respondent no. 7 is unlawful. 4. Learned counsel for the petitioner has stated that the impugned placement order is hit by provisions contained in Section 10 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'Board Act') read with the provisions contained in Rule 11 of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 'Rules') framed under the aforesaid enactment. 5. 5. Learned counsel for the petitioner has further submitted that for the purpose of making direct recruitment to the post of teacher, the Management is under statutory mandate to determine the number of vacancies existing or likely to fall vacant during the year of recruitment keeping in view the vacancies which may be required to be reserved for the candidates belonging to various reserved categories as per the provisions contained in U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (hereinafter referred to as 'Reservation Act,1994'). He states that it is only after determination of the vacancy in the manner prescribed under Section 10 of the 'Board Act' read with Rule 11 of the 'Rules' that the vacancy is to be notified to the Board in such manner and through such officer or authority as may be prescribed. 6. Learned counsel for the petitioner has stated that the Management of the institution, after determining the vacancy in question to be filled in from amongst the candidates belonging to the category of Scheduled Caste as per provision of the 'Board Act', sent the requisition to the Board through the District Inspector of Schools and hence, the placement of the candidate not belonging to the reserved category of Scheduled Caste will violate the substantive provisions contained in Section 10 of the 'Board Act' and Rule 11 of the 'Rules'. 7. He further submits that placement of respondent no.7 by means of impugned order dated 12.11.2010 is also unlawful for the reason that the same is under direct contravention of the provisions of 'Reservation Act, 1994'. 8. In support of his contention, learned counsel for the petitioner has drawn attention of this Court to the requisition dated 21.02.2006 which has been annexed as CA-2 along with counter affidavit filed on behalf of opposite party nos.1 to 3, a perusal of which reveals that while sending the requisition to the Selection Board, the DIOS, Sultanpur has clearly indicated the vacancy in question as vacancy reserved for candidates belonging to the reserved category of Scheduled Caste. 9. Learned counsel for the petitioner further fortified his aforesaid assertion drawing attention of the Court to the requisition annexed along with short counter affidavit filed on behalf of respondent no.4. 10. Submission, on the basis of requisition which has been annexed by the respondents no. 9. Learned counsel for the petitioner further fortified his aforesaid assertion drawing attention of the Court to the requisition annexed along with short counter affidavit filed on behalf of respondent no.4. 10. Submission, on the basis of requisition which has been annexed by the respondents no. 1 to 3 in their counter affidavits and also by respondent no.4 in its short counter affidavit, being advanced by the petitioner is that in view of the admitted position that the vacancy in question was reserved for the candidates belonging to Scheduled Caste, placement order for placing/appointing a candidate belonging to unreserved category is illegal. 11. Learned counsel for the petitioner further submitted that the impugned action on the part of DIOS regarding placement of respondent no.7 to be appointed against the vacancy in question is unlawful for the reason that respondent no.7 admittedly does not belong to the reserved category of Scheduled Caste. 12. On the other hand, learned counsel appearing for respondents no. 1 to 3 has raised preliminary objection as regards the maintainability of writ petition at the behest of the petitioner. In this regard, he has submitted that since the petitioner is working only on ad hoc basis as Assistant Teacher and was being paid salary pursuant to the directions issued by this Court in Writ Petition No. 3006 (S/S) of 2008, and hence he does not have the locus standi to challenge the placement order of respondent no.7. 13. He further submits that since continuance of the petitioner can be permitted as Assistant Teacher against the vacancy in question only till regularly selected candidate is made available and once regularly selected candidate has been sent for joining, he does not have any claim over the vacancy in question and thus, he cannot be said to be an aggrieved person. 14. Adopting the arguments raised by learned counsel for the respondents no. 1 to 3, Sri Nagendra Bahadur Singh, learned counsel for the respondent no.7 has submitted that since the respondent no. 7 pursuant to the impugned order was allowed to join and has been working for about a year, now at this juncture quashing the placement order of the respondent no. 7 on the ground being canvassed by the petitioner will be unjust and unwarranted. 7 pursuant to the impugned order was allowed to join and has been working for about a year, now at this juncture quashing the placement order of the respondent no. 7 on the ground being canvassed by the petitioner will be unjust and unwarranted. He further submitted that since the petitioner has not challenged the selection of respondent no.7, neither his appointment order issued by the Committee of Management has been challenged, as such in this view of the matter, no relief to the petitioner can be granted. 15. Sri H.S. Jain, learned counsel for the Selection Board has submitted that the requisition by the DIOS was sent for the vacancy in question treating the vacancy to be reserved for Scheduled Caste but once the placement of respondent no.7 in the institution has been made, cancellation of placement order of selected candidate is not warranted at this juncture. 16. I have heard the submissions made by learned counsel for the parties and also perused the record. 17. Admittedly, the post in question i.e. post of Assistant Teacher (Biology) in the institution fell vacant on 30.06.2005 due to retirement of one Sri Babu Ram. Accordingly, as per requirement of Section 10 of the 'Board Act' read with Rule 11 of the 'Rules', the vacancy was determined by the Management of the institution and papers were duly sent to the District Inspector of Schools for filling up the vacancy in question to the Selection Board in accordance with the determination so made. 18. It is apparent from the requisition dated 21.02.2006 annexed along with the counter affidavit filed by the respondents no. 1 to 3 and also annexed with the short counter affidavit filed by respondent no.4 that the vacancy in question is a vacancy meant for the candidates belonging to reserved category of Scheduled Caste. This fact is not in dispute. 19. In the meantime, during the pendency of requisition for direct recruitment against the vacancy in question, the petitioner appears to have been appointed on ad hoc basis as Assistant Teacher by the Committee of Management on 28.10.2007, pursuant to which, he had submitted his joining on 30.10.2007. This fact is not in dispute. 19. In the meantime, during the pendency of requisition for direct recruitment against the vacancy in question, the petitioner appears to have been appointed on ad hoc basis as Assistant Teacher by the Committee of Management on 28.10.2007, pursuant to which, he had submitted his joining on 30.10.2007. It is further apparent from a perusal of the documents available on record that since the petitioner was not being paid salary as such he filed Writ Petition No. 3006 (S/S) of 2008 in which this Court was pleased to pass an interim order on 28.05.2010 directing therein that respondents of the said writ petition to pay the current salary to the petitioner and also continue to pay the salary on month-to-month basis till duly selected candidate from the Commission joins. It is pursuant to the interim order dated 28.05.2008 that the petitioner was being paid salary monthly. 20. First of all, the Court proceeds to consider the preliminary objections raised by the learned counsel appearing for the respondent nos. 1 to 3 which have been adopted by learned counsel for respondent no.7. 21. Admittedly the petitioner's appointment in the institution was made only on ad hoc basis and he was being paid salary pursuant to the interim order dated 28.05.2008 passed by this Court in earlier Writ Petition bearing No. 3006 (S/S) of 2008 filed by the petitioner. 22. A perusal of the aforesaid interim order passed by this Court in the aforesaid writ petition, which has been annexed as Annexure No.6 to the present writ petition reveals that the direction was issued to the respondents to pay the current salary to the petitioner and also continue to pay his salary on month to month basis till duly selected candidate from the Commission joins. Meaning thereby the petitioner was to be paid salary as ad hoc Assistant Teacher till joining of the duly selected candidate from the Commission. 23. Learned counsel for the respondents no. 1 to 3 could not justify the placement of respondent no.7 against the vacancy meant for a candidate belonging to the reserved category of Scheduled Caste and hence, it cannot be said that the respondent no.7 is a duly placed incumbent in the institution and as such the contention of the learned counsel appearing for the respondent nos. 1 to 3 could not justify the placement of respondent no.7 against the vacancy meant for a candidate belonging to the reserved category of Scheduled Caste and hence, it cannot be said that the respondent no.7 is a duly placed incumbent in the institution and as such the contention of the learned counsel appearing for the respondent nos. 1 to 3 that the petitioner cannot be said to be aggrieved person is absolutely misconceived. 24. In this regard, it is also observed that the petitioner's right to get salary on month to month basis still subsists till duly selected candidate by the Commission joins the institution. Since the placement of respondent no.7, in the facts of the case, can not be said to be a lawful placement, as such he can not be said to be a candidate who joined the institution duly. Thus, right of the petitioner to draw his salary still subsists and hence, petitioner has locus to challenge the placement order. 25. In case, the petitioner feels that joining of respondent no.7 in the institution was not a joining of a duly placed candidate for the reason that he does not belong to the reserved category, it is always open for him to challenge the placement order of respondent no.7 on the grounds available under law to him. Thus, the submission of the learned counsel appearing for the respondent nos.1 to 3 and also that of respondent no.7 in regard to maintainability of the writ petition at the behest of the petitioner is hereby rejected. 26. As regards the other objections raised by learned counsel for the respondent no. 7 to the effect that since the petitioner has not challenged the selection or appointment order of respondent no. 7, as such no relief to the petitioner can be granted, suffice would it be to say that the appointment order of the respondent no. 7 was issued pursuant to the placement order dated 12.11.2010 which has been challenged in the instant writ petition as such merely because the appointment letter issued by the Committee of Management has not been challenged by the petitioner, he would not be barred to seek relief to which he is entitled to, in case the impugned placement order is found to be illegal. Thus, the said objection raised on behalf of the respondent no.7 also merits rejection. Accordingly, it is rejected. 27. Thus, the said objection raised on behalf of the respondent no.7 also merits rejection. Accordingly, it is rejected. 27. So far as the validity of the impugned order dated 12.10.2010 is concerned, submissions made by learned counsel for the petitioner based on Section 10 of the 'Board Act' and Rule 11 of the 'Rules' are to be examined in the light of these provisions. 28. Section 10 of the Board's Act runs as under: - "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, the 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 be 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)." 29. A perusal of the aforequoted provision of the 'Board Act' reveals that the word 'shall' occurs in the main provision of Section 10 which makes determination of vacancies, as per the provision contained therein, mandatory by the Management. The aforesaid provision requires determination of the vacancy in terms of the provision contained in U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 and thereafter it requires notification of the vacancy to the Board. 30. Rule 11 of the Rules also states that the Management will notify the vacancy only after determination of the same in accordance with sub-section 1 of Section 10 of the 'Board Act', whereby it has been made mandatory for the Management to determine the vacancy in terms of provision of the ' Reservation Act, 1994'. 31. 30. Rule 11 of the Rules also states that the Management will notify the vacancy only after determination of the same in accordance with sub-section 1 of Section 10 of the 'Board Act', whereby it has been made mandatory for the Management to determine the vacancy in terms of provision of the ' Reservation Act, 1994'. 31. The purpose of making it mandatory for the Committee of Management of the institution concerned to determine vacancy in accordance with the provision contained in Section 10 (1) of the 'Board Act' is to ensure that the provisions of the 'Reservation Act 1994' are followed and in case, no such determination is made, there is all likelihood of violation or contravention of the aforesaid 'Reservation Act, 1994'. Thus, the provisions contained in Section 10 of the 'Board Act' read with Rule 11 of the 'Rules' are mandatory in nature and any violation thereof will render the selection process illegal and unlawful. 32. In the instant case, it is neither the case of the petitioner nor that of either of the opposite parties that the procedure as prescribed under Section 10 (1) of the 'Board Act' and the Rule 11 of the 'Rules' have not been followed and the vacancy in question was not determined as one belonging to the reserved category of Scheduled Caste. 33. Even otherwise also, from a perusal of the documents annexed with the counter affidavit filed by the respondents no. 1 to 3 and also short counter affidavit filed by respondent no. 4, it is clear that the determination of the vacancy in question was done as a vacancy belonging to the reserved category of Schedule Castes and requisition was also sent through the District Inspector of Schools for the vacancy being filled up by the Selection Board treating it to be a vacancy meant of the candidate belonging to the reserved category of Scheduled Caste. 34. In this view of the matter, since in the instant case impugned placement order is not as per the determination done in terms of the provisions contained in Section 10 (1) of the 'Board Act' and Rule 11 of the 'Rules', as such any placement which is contrary to the requisition sent, cannot be allowed to be sustained. 34. In this view of the matter, since in the instant case impugned placement order is not as per the determination done in terms of the provisions contained in Section 10 (1) of the 'Board Act' and Rule 11 of the 'Rules', as such any placement which is contrary to the requisition sent, cannot be allowed to be sustained. Otherwise, if placement of a candidate not belonging to the reserved category for which determination of vacancy in question has been done is permitted, the same would not only be in contravention of the substantive mandatory provisions of Section 10 (1) of the 'Board Act' and the procedure given in Rule 11 of the 'Rules' but the same would also be in contravention of provision contained in the 'Reservation Act, 1994'. It would also be in complete contravention of the statutory mandate given under Section 10 (1) of the 'Board Act'. Thus, for the aforesaid reasons, the impugned order placing the respondent no.7 in the instant writ petition cannot be sustained. Hence, the same is hereby quashed. 35. Since the placement order dated 12.11.2010 passed by the District Inspector of Schools which required the Committee of Management to issue the appointment letter to the respondent no. 7 is quashed, as such all consequential letters including the letter of appointment issued by the Committee of Management in favour of the respondent no.7 shall have no consequence. 36. However, quashing of the placement order dated 12.11.2010 and declaring the letter of appointment issued by the Committee of Management as inconsequential would not render the selection of respondent no.7 to be unlawful or illegal in any manner. 37. Provisions contained in Rule 13 (5) of U.P. Secondary Education Services Selection Board Rules, 1998 provide that if a candidate selected by the Board is not able to join in an allocated institution due to non availability of vacancy or for any other reason, the District Inspector of Schools in such a situation shall recommend to the Board for his adjustment against any other vacancy notified to the Board in any other institution. 38. Since in the instant case, no fault with the selection of respondent no.7 has been found, hence the District Inspector of Schools is hereby directed to make recommendation to the Selection Board for adjustment of respondent no. 7 against any vacancy notified to the Board in any other institution. 38. Since in the instant case, no fault with the selection of respondent no.7 has been found, hence the District Inspector of Schools is hereby directed to make recommendation to the Selection Board for adjustment of respondent no. 7 against any vacancy notified to the Board in any other institution. Such exercise by the District Inspector of Schools shall be done within ten days from the date of receipt of certified copy of this order. The Board shall thereafter take a decision for placing the respondent no. 7 against any appropriate vacancy within next two weeks. 39. It is further directed that no recovery of any amount which may have been paid to the respondent no.7 towards salary shall be made and services rendered him in Sri Bheemsen Inter College, Badgaon, Chhatrapati Sahauji Nagar as Assistant Teacher shall be counted for all other purposes in regard to other service benefits. 40. With the aforesaid observations and directions, the writ petition is allowed.