C/M, N.A.S. Inter College Meerut & ... vs State Of U.P. & Others
2012 Latest Caselaw 2085 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 28
 

 
Case :- WRIT - A No. - 59814 of 2008
 

 
Petitioner :- C/M, N.A.S. Inter College Meerut & Another
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Nitin Sharma
 
Respondent Counsel :- C.S.C.,V.K.Singh
 

 
Hon'ble B. Amit Sthalekar,J.

This writ petition has been filed by the petitioner challenging the orders dated 8.09.2008, 3.10.2008 and 23.10.2008 and seeking  a further direction commanding the respondents not to appoint the respondent No. 4 as Principal of the petitioner-Institution.

The facts of the case in brief are that there is an Institution known as Nanak Chand Anglo Sanskrit Inter College, Meerut (the Institution). The said Institution is recognized and is also receiving grant-in-aid. It is governed by the provisions of U.P. Intermediate Education Act, 1921 and the Regulations framed thereunder as also the U.P. Secondary Education Services Selection Board Act, 1982. A post of Principal fell vacant in 1995 and a requisition for selection to the said post was forwarded by the Committee of Management to the Selection Board under the Act, 1982. Pending selection a senior most Lecturer was appointed as officiating Principal till the candidate selected by the Selection Board would join. After the interview, a panel of selected candidates was prepared on 15.04.1997. In the meantime the constitutional validity of Sections 9,10 and 11 of the U.P. Secondary Education Commission Act, 1982 was challenged and therefore, the State Government issued a notification on 17.04.1997 staying the implementation of the select list. Ultimately, the vires of the Act 1982 were upheld by the Supreme Court.

The contention of the petitioner, Committee of Management is that the candidate at serial No. 1 of the select list, one Sri Syed Hussain Asgar Kazmi was directed to report to the institution and submitted his joining but Sri Kazmi did not join the institution. Accordingly, the respondent No. 4 who was the second candidate in the select list was directed to submit his joining in the institution. The contention of the petitioner is two-fold, one that once the candidate at serial No. 1 of the select list had declined to join the institution, the select list came to an end and thereafter, there was no further scope for directing the candidate at serial No. 2 namely, the respondent No. 4 to join the institution. The second contention of the petitioner is that as per the proviso to sub rule 5(a) of Rule 12 of the U.P. Secondary Education Services Commission Rules, 1995, no candidates shall be allocated the institution of his home district.

I have heard Sri Nitin Sharma, learned counsel appearing for the petitioner, Sri Vinod Kumar Singh, learned counsel appearing for respondent No. 4 and the learned standing counsel appearing for respondent Nos. 1,2 and 3. The order is being dictated in open Court.

The submission of the learned counsel for the petitioner is that once a candidate at serial No. 1 of the select list had declined to join the institution in question, the select list would cease to operate and therefore, no direction could have been given by the DIOS, Meerut to the respondent No. 4 to submit his joining in the said institution. Rebutting the submission of the learned counsel for the petitioner. Sri Vinod Kumar Singh appearing for respondent No. 4 has relied upon the decision of a Division Bench of this Court reported in 2008(1)ESC 428 (All) (DB), Chandresh Nath Singh Baghel Vs. Bhagwan Singh Sisodia and others. He has in particular drawn the attention of the Court to Para 7 of the said judgment wherein the issues for consideration of the Court have been outlined. Para 7 reads as follows:

"The issues for consideration before this Court in the present Special Appeal are allowed as follows:

"(a) Whether the select panel notified under the provisions of the Act exhausts itself with the appointment of the candidate empanelled at serial No. 1.

(b) Whether the candidate empanelled at serial No. 2 of the said panel can be offered appointment in case the person  at serial No. 1 after joining, retires, resigns or expires within the valid period of the select panel, which under the Rules is one year.

(c) Whether select panel in respect of an earlier vacancy can be used for filling up of the subsequent vacancy because of death, resignation or retirement of the earlier incumbent or such vacancy is required to be advertised afresh so as to  make the process of selection in conformity with Articles 14 and 16 of the Constitution of India."

In Para 21 of the said judgment, the Division Bench has further held as follows:

"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 could 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."

Thus what has been held by the Division Bench is that the life of a select list comes to an end when a candidate at serial No. 1 joins and after joining retires/resigns or expires within a valid period of the select panel which under the rules is one year. However in Para 21, the Court has held that the valid select list under the U.P. Commission Rules is only for purpose of offering appointments 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 the post in accordance with his merit, the remaining select panel would exhaust itself automatically and the remaining panel cannot be said to have a life beyond the purpose for which it was prepared.

In the present case, the admitted facts are that the candidate at serial No. 1 of the select list, namely, Sri Syed Hussain Asgar Kazmi did not join on the post of Principal in the institution in question. Therefore, the submission of the learned counsel for the petitioner that the life of the select list would come to an end and the select list would exhaust itself, does not hold water.

Sri Nitin Sharma further submitted that after the select panel of the year 1997, two more select panels have been declared by the U.P. Secondary Education Services Commission and, therefore, it cannot be said that the panel of 1997 will alive. This submission of the learned counsel also does not hold water in view of the law laid down in the case of Chandresh Nath Singh Baghel (supra) when applied to the facts of the present case. Since the candidate at serial No. 1 had not joined, it could not be said that the select list has exhausted itself and that no directions could be given to the respondent No. 4 to join the institution.

The second leg of the submission of Sri Nitin Sharma is that the respondent No. 4 belonged to the home district of Meerut in which N.A.S. Inter College is situated and therefore, in terms of the proviso to sub rule 5(a) of Rule 12 of the U.P. Secondary Education Services Commission Rules, 1995, he was not eligible to be appointed as Principal in the N.A.S. Inter College, Meerut. In support of his submission Sri Sharma has placed reliance upon the documents filed as Annexure III to the writ petition wherein at page 21 of the writ petition at serial No. 3 after the name of respondent No. 4 it is mentioned as "Prantiya Upadhyaksha", Uttar Pradesh Madhyamik Sikshak Sangh, Meerut. He has also drawn attention of the Court to the document filed as Annexure VI at page 30 of the writ petition where the address of the respondent No. 4 has been shown as " dwara Sri Bhagwan Sharma, 158 Kailashpuri, Meerut".

Rebutting the second submission Sri Vinod Kumar Singh, learned counsel for respondent No. 4 has drawn attention of the Court to the document filed as Annexure V (CA-5), service book of respondent No. 4. This is the photocopy of the first page of the service book of the petitioner wherein the address of the respondent No. 4 has been shown as "Village-Achchhaija Post Hapur District Ghaziabad". He also relied upon a subsequent document which is at page 30 of the counter affidavit which is a certificate issued by SDM, Hapur District Ghaziabad, which also verifies that the respondent No. 4 is ordinarily a resident of Village-Achchhaija Post Hapur District Ghaziabad.

From a perusal of the documents which have been filed by the petitioner as well as by the respondent No. 4 to show the residence of respondent No. 4, from the documents at page 29 and page 30 of the counter affidavit, there is absolutely no doubt that the home district  of respondent No. 4 is district Ghaziabad (now district Hapur) Village-Achchhaija. In fact document on page 29 of the counter affidavit is a photocopy of the page of the service book of the petitioner  which also mentions the home district of respondent No. 4 to be Village-Achchhaija, Tehsil Hapur (now district Hapur) District Ghaziabad. The document filed at page 21 of the writ petition does not mention the address of the respondent No. 4. It only states that the respondent No. 4 is the "Prantiya Upadhyaksha" of the Uttar Pradesh Madhyamik Shikshak Sangh, Meerut. The document at page 30 also after the name of respondent No. 4 mentions his address as " dwara Sri Bhagwan Sharma, 158 Kailashpuri, Meerut" which translates as C/o Sri Bhagwan Sharma, 158, Kailashpuri, Meerut. It is not disputed between the parties that prior to his selection for the post of Principal, the respondent No. 4 was working as Assistant Teacher in the institution at Meerut and therefore, it is obvious that he would have some residential address in Meerut but that would not itself would lead to any inference that Meerut is the home district of the respondent No. 4.

The term "home district" has not been defined any where, either in the U.P. Intermediate Education Act, 1921 or the Regulations framed thereunder or under the U.P. Secondary Education Services Selection Board Act, 1982 or the Rules 1995 but in common parlance "home district" would mean the place of permanent resident of the individual irrespective of where he may be settled for the purposes of his job or other vocation.

In view of the foregoing discussions, I find no merit in the writ petition.

It is further contended by Sri Nitin Sharma that during the period when the matter was pending before the Court, the respondent No. 4 had joined another institution namely, Nehru Smarak Inter College, Kurali, Meerut in the year 2009 as a permanent Principal selected through the Commission. Sri Vinod Kumar Singh, however, seriously disputed this fact and he submits that though the respondent No. 4 joined the  Nehru Smarak Inter College, Kurali, Meerut in the year 2009, he has been placed under probation and even after the expiry of two years his probation has been extended further on the ground that  the  matter regarding his posting in the N.A.S. Inter College is still sub judice before the Court. He therefore, submits that his right to seek appointment on the post of Principal in the N.A.S. Inter College, Meerut flows from the  validity of the life of select list of 1997 and that right cannot be obliterated by his subsequent joining in the Nehru Smarak Inter College, Kurali, Meerut which he joined only for purposes of his livelihood.

In my opinion, since the select list of 1997 still holds good on the non-joining of candidate at serial No. 1 of the said select list, as held by the Division Bench of this Court in the case of Chandresh Nath Singh Baghel (supra) the right of the respondent No. 4 to seek his appointment on the post of Principal in the N.A.S. Inter College cannot be defeated, solely on the ground that he had in the mean time join the Nehru Smarak Inter College, Kurali, Meerut.

In view of the foregoing discussions and the law laid down by Division Bench of this Court, in my opinion, the present writ petition is devoid of merit and deserves to be dismissed. It is, accordingly, dismissed.

Order Date :- 23.5.2012

Arun K. Singh