Km. Babita Saxena vs State Of U.P. And 3 Others
2014 Latest Caselaw 547 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 1
 

 
Case :- WRIT - A No. - 6284 of 2014
 

 
Petitioner :- Km. Babita Saxena
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Vijay Kumar,Ajit Kumar Srivastava
 
Counsel for Respondent :- C.S.C.,Gautam Baghel
 

 
Hon'ble B. Amit Sthalekar,J.

The petitioner in this writ petition is seeking a direction to the respondents to ensure his joining on the post of Principal in the Nehru Nagar Palika Inter College, Gandhi Park, District Rampur (the College) in terms of the order dated 14.6.2012 passed by the Deputy Secretary Uttar Pradesh Secondary Education Services Selection Board (hereinafter referred to as the 'Board').

Briefly stated the facts of the case are that for selection to the post of Principal in the Government aided Intermediate Colleges an Advertisement no.1/2002 was notified in the year 2002. The petitioner alongwith several other candidates was also a candidate. A select panel was prepared and the petitioner was placed at Sl. No.2 in terms of the select list notified on 11.9.2002. One Km. Santosh Srivastava was at Sl. No.1 above the petitioner. It appears that the selection of 2002 was not operated as there was some litigation going on which matter went up to the Supreme Court in SLP No. 19335-336 of 2003 and therefore appointment letter was not issued to any of the selected candidates. Finally the said SLP was decided in favour of the Board by judgment dated 16.5.2008. Thereafter the select panel was verified by the Board and as would be evidenced from the correspondence dated 7.7.2008 between the Board and the respondent no.3, District Inspector of Schools, Rampur (hereinafter referred to as the DIOS) and the Board directed the DIOS to ensure joining be given as per the panel dated 11.9.2002. On 5.9.2011, Km. Santosh Srivastava, at Sl. No.1 of the select list, informed the DIOS that she was not willing to join the Institution. Accordingly, the respondent no.3, DIOS by his letter dated 20.9.2011 ( Copy of which has been filed as Annexure-2 to the writ petition) intimated the Board about the name of the petitioner for being issued the appointment letter for the post of Principal in the Nehru Nagar Palika Inter College, Gandhi Park, District Rampur. When no appointment letter was issued to the petitioner, the DIOS by his letter dated 14.10.2011 informed the City Magistrate Rampur, who was in administrative control of the college, to issue letter of appointment to the petitioner and ensure her joining within one week. A reminder letter was issued on 14.11.2011. Ultimately by an order dated 16.12.2011 (Annexure 5 to the writ petition) an order of appointment was issued by the City Magistrate/Administrative Controller to the petitioner to take charge of the post of Principal within one week or it will be presumed that he was not interested in taking charge of the post and the Board as well as DIOS shall be informed accordingly.

In para 17 of the writ petition, it has been stated that the petitioner twice tried to submit her joining but the respondent no.4, Manager of the College did not allow her joining. Subsequently an order dated 8.5.2012 (Annexure-6 to the writ petition) was issued by the DIOS to the Manager of the College respondent no.4 informing that a fresh advertisement has been issued by the Board but in case the petitioner is allowed joining, the said publication will be cancelled. Again nothing was communicated to the petitioner and then the respondent no.2, Board issued a letter dated 14.6.2012 addressed to the DIOS informing him that in pursuance of the advertisement no.1/2002 select panel was issued on 11.9.2002 in which Km. Santosh Srivastava was at Sl. No.1 and the petitioner Km. Babita Saxena was at Sl. No.2 but because the matter had been pending before the Supreme Court the panel could not be operated and it is only after the judgement of the Supreme Court dated 16.5.2008 went in favour of the Board that approval of the panel had been done on 7.7.2008 and therefore, the panel may be operated and informed to the Board that in case the candidate at Sl.No. 1 and Sl. No.2 are not available for appointment even then information may be sent to the Board since a fresh selection had already been notified. The petitioner is now pressing that in pursuance of the letter of the Board dated 14.6.2012 a direction may be issued to either the respondent no.3, DIOS or to the Manager of the College in question, respondent no.4 to allow the petitioner to join the College. At the time of admission this Court by its order dated 31.1.2014 had issued notice to the respondent to file counter affidavit within two weeks and the matter was fixed for 18.2.2014 and the DIOS was directed to be present in the Court with the original records to assist the Court as to why the petitioner was not allowed to join. Thereafter again on 27.2.2014 a direction was given to the respondent no.3 to ensure that the petitioner was given joining and in case joining is not given Smt. Maya Devi, the DIOS who was present in Court was directed to ensure that the respondent no.4, College in question gives joining to the petitioner on 11.3.2014. The matter again came up on 12.3.2014 when it was again informed that the petitioner had not been allowed joining by the College. Sri Upendra Singh, learned Standing Counsel was also directed to obtain instructions as no counter affidavit had been filed by the State-respondents in spite of time having been granted.

Heard Sri Ajit Kumar Srivastava, learned counsel for the petitioner, Sri Gautam Baghel, learned counsel for the respondent no.2, Sri S.M. Khan, learned counsel for the respondent no.4 and the learned Standing Counsel for the respondents 1 & 3.

On 25.3.2014, Sri Ajit Kumar Srivastava placed before the Court certain papers one of them being a letter dated 11.3.2014 by which the DIOS Smt. Maya Devi had written to the Manager of the Committee of Management of the College as to whether in the middle of the Board Examinations the petitioner could be allowed joining. Another letter was placed before the Court also dated 11.3.2014 written by the Manager of the College to the District Election Officer, Rampur as to whether after notification of the elections the petitioner could be given joining. Another letter also dated 11.3.2014 was placed before the Court whereby the District Election Officer, Rampur had confirmed that joining can be given to the petitioner.

The Manager was also directed to be present in Court. A supplementary affidavit with the said documents was filed and the same was taken on record. Sri Gautam Baghel, learned counsel appearing for the Board was also directed to explain as to why when the select panel under the advertisement no.1/2002 was still in existence and had not been exhausted why the second advertisement was issued by the Board for the post of Principal of the College in question. The matter was then fixed for 01.04.2014. In the meantime Sri Prakash Padia put in appearance and filed two impleadment applications one on behalf of Smt. Khursheed Jahan stated to be the Officiating Principal of the College in question and the other by Smt. Shahida Parveen, Senior Most Lecturer in History to be impleaded as respondent no.5 & 6 in the array of respondents. The matter was fixed for 1.4.2014. On 1.4.2014 a supplementary affidavit was filed by the petitioner bringing on record the three letters each dated 11.3.2014. The same was taken on record. The matter was taken up for argument The learned Standing Counsel submitted that so far as they are concerned, they are ready and willing to ensure joining of the petitioner. Sri S.M. Khan also filed his Vakalatnama on behalf of respondent no.4, Manager of the College in question and he stated that the Manager is ready and willing to give joining to the petitioner within 24 hours if the petitioner presents herself before the College. However, Sri Prakash Padia appearing for the proposed respondents no.5 & 6 opposed this prayer made by Sri Upendra Singh, learned Standing Counsel as well as Sri S.M. Khan on behalf of respondent no.4. The impleadment applications have not been allowed but Sri Prakash Padia was nevertheless given an opportunity of being heard and he submitted that the fresh advertisement was issued by the Board on 1.8.2011. Km. Santosh Srivastava, the candidate at Sl. No.1 of the selected list dated 11.9.2002 submitted an application on 5.9.2011 expressing her unwillingness to join the post of Principal and it is only thereafter that the claim of the petitioner could be said to have become ripe she being a candidate at Sl. No.2 of the select panel dated 11.9.2002.

Sri Padia further submitted that in pursuance of the fresh advertisement dated 1.8.2011 issued by the Board for the post of Principal of the same College the petitioner had also applied and since she had not challenged the fresh advertisement she was estopped from filing the present writ petition and staking her claim for being appointed on the post of Principal against the earlier advertisement no.1/2002.

Certain facts which are not disputed between the parties may be outlined for proper appreciation of the case.

The vacancy for the post of Principal of the the Nehru Nagar Palika Inter College, Gandhi Park, District Rampur was advertised through advertisement no.1/2002. The petitioner alongwith some other persons applied for the said posts. A select list was prepared on 11.9.2002 in which the petitioner was at Sl. No.2 and one Km. Santosh Srivastava was at Sl No.1. There was some litigation with regard to the selection for the post of Principal and the matter went up to the Supreme Court in SLP No. 19335-336/2003 which was ultimately decided by the Supreme Court by judgement dated 16.5.2008 in favour of the Board. After the judgment the select panel was verified by the Board through its correspondence dated 7.7.2008 with the DIOS and the Board directed the DIOS to ensure joining of the selected candidate. On 5.9.2011 Km. Santosh Srivastava the candidate at Sl No.1 of the select panel dated 11.9.2002 submitted her application in writing expressing her unwillingness to join on the post of Principal of the said College. The DIOS through his letter dated 20.9.2011 informed the Board and also intimated the claim of the petitioner for being issued appointment letter being the candidate at Sl. No.2 in the said select list. When no appointment letter was issued to the petitioner the DIOS through his letter dated 14.10.2011 directed the City Magistrate, Rampur who was the Administrative Controller of the College, to ensure her joining within one week. Again no joining was giving to the petitioner whereupon a reminder letter dated 14.11.2011 was sent by the respondent no.3 to the respondent no.4. It is then that an appointment letter dated 16.12.2011 was issued by the Manager of the College, respondent no.4 calling upon the petitioner to submit her joining within one week failing which it would be presumed that she was not interested in joining and information in this regard would then to be submitted before the DIOS and the Board.

In para 17 of the writ petition it has been stated that the petitioner twice reported herself for joining but she was not given joining. During this period on a requisition sent by the DIOS the post of Principal of the College in question was again advertised on 1.8.2011 by the Board. The DIOS respondent no.3 through his letter dated 8.5.2012 informed the respondent no.4 that the post had again been advertised but in case the petitioner was allowed joining, the publication would be cancelled by the Board and that as a result of not giving joining to the petitioner and issuance of a second advertisement for the same post a peculiar situation had been created due to the inaction of the Manager of the College, respondent no.4.

Thereafter the order dated 14.6.2012 was issued by the Board addressed to the DIOS wherein it was stated that though the selection panel in pursuance of the advertisement no. 1 of 2002 was issued as far back as 11.9.2002 but joining had not been given to the selected candidate although after the judgement of the Supreme Court dated 16.5.2008 having gone in favour of the Board, the Board had approved the panel through its order dated 7.7.2008. The Board also directed the DIOS to take steps to give joining to the selected candidates of the panel and in case the candidates at sl. no. 1 and 2 are not available for appointment, the Board may be informed since a fresh advertisement had already been issued in the meantime.

Although notices have been issued in the case but no counter affidavit has been filed by the State. An affidavit, however, was sought to be filed on behalf of the respondent no. 4-College which, however, was not accepted by the Court since it was not properly sworn and did not having the photograph of the deponent as is required under the Rules of the Court. However, Shri S.M. Khan who has filed his Vakalatnama on behalf of the respondent no. 4-Manager was given an opportunity of hearing and was heard at length. Shri S.M. Khan did not dispute the fact that after the orders of this Court, the petitioner had reported for joining on 11.3.2014 but the Manager wrote to the District Election Officer asking whether joining could be given to the petitioner since the elections had already been notified but he stated that the District Election Officer had through his letter also dated 11.3.2014 informed that joining could be given to the petitioner. This fact has not been disputed by Shri Upendra Singh, learned standing counsel. Both, the learned standing counsel as well as Shri S.M. Khan expressed their willingness to give joining to the petitioner within 24 hours, if the petitioner presents herself in the College. This proposal has been opposed by Shri Prakash Padia, appearing for the proposed respondents no. 5 and 6 on whose behalf he has filed two impleadment applications. One impleadment application has been filed by Smt. Khursheed Jahan supported by an affidavit wherein it is stated that she was the senior most Lecturer and was given the charge of the post of Principal on officiating basis. It has also been stated that in pursuance of the second advertisement issued by the Board being advertisement no. 1 of 2011 she has been called for appearing in the interview on 18.2.2014. In paragraph 14 of the affidavit it is also stated that she is going to attain the age of superannuation of 60 years on 5.1.2014 but since the academic session would continue upto 30.6.2014 she would retire on 30.6.2014 and therefore she did not even think it proper to appear before the Board or to face the interview for the post of Principal. Paragraph 14 of the affidavit of Smt. Khursheed Jahan filed in support of the impleadment application reads as under:

"That the date of birth of the applicant is 6.1.1954 as such she has already attained the age of superannuation in the evening of 5.1.2014 i.e. attaining the age of 60 years. She is continuing even today on the post of Officiating Principal and getting the advantage of session benefits and now, she will retire from service on 30.6.2014. In these circumstances of the case since the applicant was going to retire on 30.6.2014 and since she has already attained the age of superannuation on 5.1.2014 she was not think it proper to appear before the Board to face the interview for the post of Principal."

Another impleadment application has been filed by Smt. Shahida Parveen who in her affidavit filed in support of the application has stated that in pursuance of subsequent advertisement no. 1 of 2011 she has appeared in the interview on 18.2.2014 completing all the formalities. She has also stated in paragraph 13 of her affidavit that after the retirement of Smt. Khursheed Jahan on 30.6.2014 she would be entitled to officiate as Principal being the senior most Lecturer in the Institution.

Shri Prakash Padia further submitted that the petitioner had never challenged the second advertisement no. 1 of 2011 issued by the Board and secondly that she had also applied under the advertisement no. 1 of 2011 and therefore she was estopped from claiming appointment on the post of Principal in pursuance of the first advertisement no. 1 of 2002. Shri Padia also submitted that the advertisement no. 1 of 2011 was issued on 1.8.2011 and the candidate at Sl. No. 1 of the select list dated 11.9.2002, Km. Santosh Srivastava submitted her application expressing her unwillingness to joint the post on 5.9.2011 and therefore till Km. Santosh Srivastava had submitted her application the petitioner had no claim for appointment to the post of Principal under the advertisement no. 1 of 2002 as she was the candidate at the sl. no. 2 of the select list. Shri Prakash Padia further submitted that after the advertisement no. 1 of 2011 had been issued and Km. Santosh Srivastava had expressed her unwillingness to join the post, the petitioner could not stake her claim for appointment under the advertisement no. 1 of 2002 since the second advertisement had already been issued.

The submissions of Shri Padia have been made only to be rejected. If the second advertisement no. 1 of 2011 had been issued it was due to no fault of the petitioner. Infact it was the petitioner who was not given joining due to the inaction of the respondent no. 4-Manager of the Institution inspite of several letters and communication being sent by the Board as well as DIOS. Further the mere fact that the petitioner had applied against the advertisement no. 1 of 2011 would not operate as estoppal to her claim for being appointed against the post of Principal under the advertisement no. 1 of 2002. It is not that the petitioner had applied against the advertisement no. 1 of 2011, appeared in the selection and had failed to qualify the same and only thereafter filed this writ petition staking her claim under the advertisement no. 1 of 2002. So far no select list has been issued under the advertisement no. 1 of 2011.

The learned counsel for the petitioner has relied on a Division Bench judgment of this Court reported in 1994 (2) AWC 1058, Suraj Prakash Bhatia Vs. State of U.P. and others. Paragraph 7 of the said judgment reads as follows:

"After hearing counsel for the parties and perusing the various affidavits we find two contradictory stands taken by the respondents. On the one hand, the stand is that the petitioner did not join and did not report for joining, hence he could not be absorbed on the post for which he was selected, but in the order dated 21.3.1991 as aforesaid, stand of the respondent is that since the second list has been issued by the Public Service Commission and on its being issued, the first list automatically falls hence the petitioner could not be absorbed. From the narration of the facts and after considering the facts stated in the counter affidavit the stand of the respondents that the petitioner did not report does not stand to reason, as we find, repeatedly not only the petitioner reporting after passing of the order by the authority concerned yet he could not be given charge for one reason or the other. In fact, when charge was not given to the petitioner, the petitioner approached the Director General (Health) in this regard. In paragraph 7 of the counter affidavit the stand taken is that even though the order issued by respondent No. 2, namely-Director Administration on 25th of July, 1990 for giving charge to the petitioner by the 30th of July, 1990, but since the petitioner did not contract the Chief Medical Officer, hence charge could not be given. It is significant that it has been stated in paragraph 8 of the rejoinder affidavit controverting the facts stated in paragraph 7 of the counter affidavit that the said letter dated 25th of July, 1990, copy of which was also sent to the petitioner, was only delivered on the 19th August, 1990, hence the question of petitioner joining before that could not arise. On the other hand, there is nothing in the counter affidavit to show that after receipt of the letter, any communication was sent to the petitioner asking him to come and join on the said post. The stand of the petitioner, as also stated in paragraph 8 of the rejoinder affidavit, is that he also wrote a letter to the Chief Medical Officer on the 2nd of August, 1990, requesting him to arrange for taking charge but no communication was sent. On this small pretext not to permit the petitioner to take over charge for which he was appointed as far back as in the year 1988 is very unfortunate specifically where the petitioner is running from pillar to post requesting him to join. Thus the stand taken in the counter affidavit cannot be accepted. Even in the alternative defeating claim of petitioner that he did not come when petitioner did come to join on 7th August, 1990 that is to say seven days after the date mentioned in the aforesaid Director's letter for allowing the petitioner to join by 30th July, 1990. This date was outer date for respondent not the last date to the petitioner to join. It is very unfortunate that such stand is taken by the respondent to defeat the right of the petitioner who is duly selected. Next, this stand is in contradiction of the letter issued by the respondent No. 1 on 21st of March, 1991. By this, right of the petitioner is defeated as he did not join and now second selection list is out. Thus the first list falls. This stand of the respondent is also unsustainable. As we have already held above, it is not that the petitioner did not join but it is the respondent who did not permit him to join As, on the facts, we have found the cancellation of his appointment on this ground is unsustainable, we also hold that the stand of the respondents that on the issue of the second selection list, the first list automatically falls would not be applicable to a case wherein an appointed person of the first selection was not permitted to join Issuance of second list cannot defeat such class of cases. The first list would continue to be valid till the incumbents selected are not absorbed on the vacancies or posts for which selection was made. Delay in filing vacancies by the respondents cannot defeat a selected candidate's right. Of course, after issuance of second selection list for vacancies or pouts for which second selection was made the first list falls. If the vacancy did exist during that period and the respondents did not make any appointment of absorption on the said post even if the second list is published and if some person in the first list is still not absorbed the first list could not come to an end. This stand of the respondent is also unsustainable."

Shri Gautam Baghel, learned counsel appearing for the Board was directed to seek instructions and his case is also not that the selection in pursuance of the advertisement no. 1 of 2011 has been finalized or any select list has been prepared or published. Infact the stand of the Board is that the second selection of 2011 was advertised under the requisition received from the DIOS but the Board had itself been corresponding with the DIOS to give joining to the selected candidate of the select list dated 11.9.2002 under the advertisement no. 1 of 2002 and had informed the District Inspector of Schools through the letter dated 14.6.2012 that only if the candidate at sl. no. 1 or sl. no. 2 is not available for appointment, the advertisement no. 1 of 2011 may be operated.

The stand of the learned standing counsel, representing the State respondents, Shri S.M. Khan, learned counsel representing the respondent no. 4-College in question and Shri Gautam Baghel, representing the Board commonly is that if the candidate at sl. no. 1 had expressed her unwillingness to join the post, the petitioner would have a right to stake her claim for appointment under the advertisement no. 1 of 2002.

So far as the two impleadment applications filed by Shri Prakash Padia are concerned, joining of the petitioner cannot be denied or her claim defeated only because Smt. Khursheed Jahan is going to retire on 30.6.2014 as officiating Principal because such officiating arrangement was allowed only because the selected candidate under the panel of 11.9.2002 had not been allowed to join. So far as the claim of Smt. Shaheeda Parveen is concerned it is based on hyperbole since her claim would come alive after 30.6.2014 when Smt. Khursheed Jahan retires. However, since Smt. Khursheed Jahan herself has no right to continue as officiating Principal when a selected candidate from the Board is available, Smt. Shaheeda Parveen too would have no right to the said post. Therefore, in view of the facts and circumstances of the case the two impleadment applications filed by Smt. Khursheed Jahan and Smt. Shaheeda Parveen are rejected.

In view of the very fair and just proposal made by the learned standing counsel as well as Shri S.M. Khan on behalf of the Management of the College that the petitioner would be allowed joining at the earliest whenever she presents herself in the College to give her joining, it is directed that the petitioner shall present herself on 9.4.2014 before the respondent no. 4 and the respondent no. 4 shall give her joining on the post of Principal forthwith and report to the District Inspector of Schools, Rampur on the same date. The District Inspector of Schools, Rampur is also directed to ensure that the petitioner is given joining by the respondent no. 4-Management on 9.4.2014 itself.

With the aforesaid observations and directions the writ petition stands allowed.

Dated: 04th April, 2014.

o.k./N.Tiwari