Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 533 (ALL)

Anil Kumar v. State of U. P.

2020-02-18

YASHWANT VARMA

body2020
ORDER : Yashwant Varma, J. 1. Heard Sri Utkarsh Birla learned counsel holding brief of Sri Siddhartha Khare for the petitioner, Sri Vishal Tandon learned Brief Holder for the State respondents, Sri S.K. Mishra who appears for the respondent No. 9 and Sri Anoop Kumar learned counsel holding brief of Sri K. Shahi for the Board. 2. The petition challenges an order of 08 February 2013 passed by the Board annulling the selection of the petitioner here as a Lecturer in Physics. 3. Undisputedly the petitioner was selected by the Board as Lecturer Physics and accorded placement at Sri Gandhi Vidyalaya Inter College a recognised and aided institution governed by the provisions of the Uttar Pradesh Intermediate Education Act 1921. Respondent No. 9 was also selected by the Board as a Lecturer and placed at Mahendra Technical Inter College Chandauli. It is alleged that the management of that institution did not permit the ninth respondent to join. It is this which appears to have moved him to petition the respondents to allot another institution. In the meanwhile and pursuant to the recommendation made by the Board and the provisions of Rule 13 as made in the 1998 Rules, the petitioner here was issued an order of appointment by the Gandhi Vidyalaya Inter College on 21 August 2012. Pursuant to that order, he joined the institution and proceeded to commence his assignment. It is averred that he was also paid salary from month to month thereafter. Respondent No. 9 in the meanwhile preferred Writ-A No. 47882 of 2012 seeking the issuance of a direction commanding the Board to accord him adjustment in some other institution. That petition came to be disposed of on 18 September 2012 in the following terms;- "Issue raised in the present writ petition has already been answered by this Court in Civil Misc. Writ Petition No. 43852 of 2012 (Praveen Chanchal Vs. State of U.P. and others) decided on 03.09.2012 wherein this Court has proceeded to pass detailed judgment. Operative portion of the judgment is being extracted below: "Once such is the factual situation that selected candidates are made to suffer then in such a situation, in such matter two tier exercise is required to be undertaken. State of U.P. and others) decided on 03.09.2012 wherein this Court has proceeded to pass detailed judgment. Operative portion of the judgment is being extracted below: "Once such is the factual situation that selected candidates are made to suffer then in such a situation, in such matter two tier exercise is required to be undertaken. At the first instance, application is to be moved before the Regional Joint Director of Education of the Region concerned, who will proceed to exercise authority under Section 17 of U.P. Act No. V of 1982 as far as may be within one month by ensuring joining of selected candidate, and if due to non-availability of vacancy or for any other reason joining could not be ensured then District Inspector of Schools be asked to recommend the matter to Selection Board, for passing orders under Rule 13(5) of 1998 Rules, keeping in view the dictum of this Court in the case of Raja Ram (supra) and the Regional Joint Director of Education, in addition to it when he finds in enquiry that there does not exist vacancy, whereas vacancy in question has actually been notified/verified, and said exercise has been undertaken by the Managing Committee and verified by the District Inspector of Schools, then qua these two agencies, action be recommended and taken in accordance with law. In the second phase, Selection Board, after receiving the recommendation under Rule 13(5) shall proceed to take exercise for adjustment against the vacancy notified and advertised and clarified in the case of Raja Ram (supra) within six weeks from the date of recommendation by Inspector. With the above observations and directions present writ petition is disposed of. Copy of the judgment be forwarded to Director of Education (Secondary) for further follow up action in accordance with law." Consequently present writ petition is also disposed of on the same term as Civil Misc. Writ Petition No. 43852 of 2012 (Praveen Chanchal Vs. State of U.P. and others) decided on 03.09.2012." 4. Copy of the judgment be forwarded to Director of Education (Secondary) for further follow up action in accordance with law." Consequently present writ petition is also disposed of on the same term as Civil Misc. Writ Petition No. 43852 of 2012 (Praveen Chanchal Vs. State of U.P. and others) decided on 03.09.2012." 4. In Praveen Chanchal the procedure to be adopted in situations like the present was explained as follows:- "Section 17 of U.P. Act No. V of 1982, provides forum to an incumbent, who is entitled to be appointed as teacher in institution, but he/she is not appointed by the Management, within the time frame provided for, then he can apply to the Director of Education or any Officer, authorised by him for a direction under Sub-Section (2) of Section 17. On receipt of application, enquiry is to be held, and if satisfaction is recorded that Management has failed to appoint, in contravention of the provision of the Act, then directives can be issued to appoint him/her forthwith and to pay salary from the date specified and the Head of the institution to take work. Salary due can be recovered as arrears of land revenue. Director of Education (Secondary) as well as Regional Joint Director of Education of the Region have been vested with the authority to see and ensure joining of the selected candidates. Director of Education has authorised, Regional Joint Director of Education of the Region concerned to exercise authority under Section 17 of U.P. Act No. V of 1982, apart from the said authority Regional Joint Director of Education has been vested with the authority under Rule 13 (4) wherein he has been obligated to monitor and ensure that selected candidate joins. Regional Joint Director of Education of the Region concerned cannot escape from his liability. One cannot go soft, while dealing with the grievance of selected candidate and the authority conferred cannot be diluted, by not proceeding to exercise the same. This Court, is of the opinion that recommendation to Selection Board, for making adjustment in another institution, in term of Sub-Rule (5) of Rule 13 of 1998 Rules, be made by the Inspector, only after enquiry is made under Section 17 of U.P. Act No. V of 1982, and it is found that it is practically impossible to enforce joining of selected candidate. This Court has clearly taken the view that the Board cannot be permitted to recommend a candidate to an institution the vacancy whereof had been notified but was not advertised/offered to the candidates during interview. District Inspector of Schools, straight away without any enquiry are referring the matter to selections Board for adjusting incumbents in another institution. The question is what happens to Managing Committee and the District Inspector of Schools, who have notified the vacancy, by discharging their statutory obligation and qua the said notified vacancy recommendation has been made, and then situation has been created, that selected candidate is not in a position to join, on account of non-availability of vacancy. Entire scheme of the Act and Rules quoted and noted above would go to show that full fledged procedure has been provided for determination of vacancies followed by notification of vacancies, and thereafter posts in question are to be advertised and selection proceedings are to be undertaken, followed by recommendation made in favour of selected candidate and full fledged procedure also has been provided for to enforce such recommendation and to take action against erring incumbent responsible for non compliance of recommendation. Chapter V of U.P. Act No. 5 of 1982, deals with the penalties. Section 22. Punishment for appointment of teachers in contravention of the provisions of the Act-Any person who fails to comply with the recommendations of the [Board] or fails to comply with the order or direction of the Director under section 17, or appoints a teacher in contravention of the provisions of this Act shall on conviction, he punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both. Section 23. Punishment for failure to furnish information or willful obstruction:-If any person- (a) willfully withholds or fails to furnish any return or information lawfully required by [****] the [Board] within the time allowed therefor; or (b) willfully obstructs any person from duly carrying out all or any of the provisions of this Act, he shall on conviction, be punished with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both. Section 24. Section 24. Offences by societies-(1) If the person committing the offence under section 22 or section 23 is a society registered under the Societies Registration Act, 1860, the society as well as every person in charge of and responsible to the society for the conduct of its business at the time of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by registered society and it is proved that the offence has been committed with the consent or connivance of, or that the commission of offence is attributable to any neglect on the part of any member of the society, such member shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Section 25. Bar against prosecution-No prosecution for an offence under this Act shall be instituted except with the previous sanction of the Director or such officer or authority as the State Government may, by general or special order, specify in this behalf. Provision quoted above, clearly, reflects that failure to comply with the recommendations, of the Board, invites penal consequences. Once such is the factual situation that selected candidates are made to suffer then in such a situation, in such matter two tier exercise is required to be undertaken. Provision quoted above, clearly, reflects that failure to comply with the recommendations, of the Board, invites penal consequences. Once such is the factual situation that selected candidates are made to suffer then in such a situation, in such matter two tier exercise is required to be undertaken. At the first instance, application is to be moved before the Regional Joint Director of Education of the Region concerned, who will proceed to exercise authority under Section 17 of U.P. Act No. V of 1982 as far as may be within one month by ensuring joining of selected candidate, and if due to non-availability of vacancy or for any other reason joining could not be ensured then District Inspector of Schools be asked to recommend the matter to Selection Board, for passing orders under Rule 13(5) of 1998 Rules, keeping in view the dictum of this Court in the case of Raja Ram (supra) and the Regional Joint Director of Education, in addition to it when he finds in enquiry that there does not exist vacancy, whereas vacancy in question has actually been notified/verified, and said exercise has been undertaken by the Managing Committee and verified by the District Inspector of Schools, then qua these two agencies, action be recommended and taken in accordance with law. In the second phase, Selection Board, after receiving the recommendation under Rule 13(5) shall proceed to take exercise for adjustment against the vacancy notified and advertised and clarified in the case of Raja Ram (supra) within six weeks from the date of recommendation by Inspector." 5. Pursuant to the directions so issued, the Board proceeded to pass the impugned order. While according adjustment to the ninth respondent in Gandhi Vidyalaya Inter College, the Board rather than making any alternative arrangement insofar as the petitioner is concerned, if at all that were mandated, it proceeded to cancel his selection itself. It is in that backdrop that learned counsel contends that the impugned order is clearly arbitrary since no power inheres in the Board to cancel the selection of a candidate in the guise of undertaking an exercise to adjust another selected candidate. It is submitted that the Board had in any case become functus officio once the letter of appointment of 21 August 2012 came to be issued. It is submitted that the Board had in any case become functus officio once the letter of appointment of 21 August 2012 came to be issued. Learned counsel for the petitioner further seeks to draw sustenance from the fact that while the petitioner had been awarded 348.20 aggregate marks, the ninth respondent who had achieved only 154.40 marks was given precedence without any legal basis and consequently the impugned order is liable to be quashed on the aforesaid grounds. 6. Despite repeated queries learned counsel appearing for the Board could not draw the attention of the Court to any provision statutory or otherwise which may have clothed the Board with the power to cancel the selection of the petitioner once and after an appointment order had come to be issued. Learned counsel for the Board abjectly failed to establish any right which the Board may have been conferred with in consequence of which it could have cancelled the selection of the petitioner itself while seeking to avowedly undertake an exercise of adjustment as contemplated and envisaged in Rule 17. Viewed in that backdrop, this Court is of the firm view that the Board had acted wholly arbitrarily and has caused grave injustice to the cause of the petitioner. 7. The order of the Writ Court passed on the petition of the ninth respondent did not also command the Board to pass orders like the one which it ultimately chose to frame and is impugned in the instant writ petition. It also appears to have clearly failed to allude to the fact that the petitioner had obtained aggregate marks far in excess of the ninth respondent. It also failed to take into consideration that the petitioner was a candidate who had been duly selected and allotted Gandhi Vidyalaya Inter College the original institution in which the ninth respondent was only accorded adjustment on account of the action of the management of respondent No. 8. Clearly therefore, the impugned order is rendered wholly unsustainable. 8. It becomes pertinent to note that when the petition was initially entertained, the impugned order of 08 February 2013 had been placed in abeyance. Pursuant to that order the petitioner is stated to have continued in Gandhi Vidyalaya Inter College. 9. Clearly therefore, the impugned order is rendered wholly unsustainable. 8. It becomes pertinent to note that when the petition was initially entertained, the impugned order of 08 February 2013 had been placed in abeyance. Pursuant to that order the petitioner is stated to have continued in Gandhi Vidyalaya Inter College. 9. Sri Mishra learned counsel appearing for the ninth respondent has pursuant to the last order passed in this petition on 03 February 2020 stated that the ninth respondent as a consequence of the impugned order being stayed was not permitted to join at Gandhi Vidyalaya Inter College. He also states that he was not offered adjustment in any other institution. 10. Insofar as the grievance of the ninth respondent is concerned that cannot possibly form subject matter of consideration on the instant petition. Any cause that the ninth respondent may have against the Board will obviously have to be addressed separately and the Court consequently leaves it open to that respondent to draw such proceedings as may be chosen and advised. Insofar the action of the Board is concerned and as it stands embodied in the impugned order, the Court has already held for reasons afore-noted that the same is rendered wholly unsustainable. 11. The writ petition is accordingly allowed. The impugned order dated 08 February 2013 insofar as it cancels the selection of the petitioner and directs placement of the ninth respondent is set aside. Since the respondent Board has been unable to proffer any justification in support of the impugned action and has also failed to salvage its decision on any statutory power that may have been conferred upon it by statute, the Court imposes costs of Rs. 10,000/- which shall be paid to the petitioner forthwith.