Allahabad High Court
Dr. Anuraga Kureel vs State Of U.P. Thru ... on 9 May, 2017
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 7 A.F.R.
Case :- SERVICE SINGLE No. - 8445 of 2017
Petitioner :- Dr. Anuraga Kureel
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Secondary Edu.Lko.&Ors
Counsel for Petitioner :- Ghaus Beg,Kunwar Ravi Prakash
Counsel for Respondent :- C.S.C., Raj Kr Singh Suryvanshi, Sm Singh Royekwar
AND
Case :- MISC. SINGLE No. - 28269 of 2016
Petitioner :- C/M Mahatma Gandhi Inter College Thru Manoj Pratap Singh
Respondent :- State Of U.P Thru Prin Secy Secondary Edu Lko & Ors
Counsel for Petitioner :- Sm Singh Royekwar
Counsel for Respondent :- C.S.C, Kunwar Ravi Prakash, R.K.S Suryavanshi
Hon'ble Rajan Roy,J.
Heard learned Counsel for the parties.
Both these writ petitions have been nominated for hearing by this Bench by the order of Hon'ble the Chief Justice.
In one of the writ petitions bearing No.28269 (MS) of 2016, the challenge is by the Committee of Management to the panel of selected candidates sent by the Board, wherein one of the selectees is Anurag Kureel, who has been selected for appointment as Lecturer (Logic) in the education Institution of the said petitioner against the reserved post of the Scheduled Caste.
The other Writ Petition bearing No. 8445 (SS) 2017 is by the selected candidate Dr. Anurag Kureel, seeking a writ of mandamus commanding the opposite party no. 3 for exercising his power under Section 17 (2) of The Uttar Pradesh Secondary Education Services Selection Board Rules, 1998, that is, for his appointment and joining in college in question and also for payment of salary with effect from 01.12.2016, as according to him in the meantime the D.I.O.S. allowed joining in his own office but he is not getting salary as the bill has to be raised against the post as it exists in the educational institution.
The contention of Sri S.M. Royekwar, learned Counsel appearing for the Management is that there are 14 sanctioned posts of Lecturer. A fact which is not denied by the learned Standing Counsel in the counter affidavit filed today in Writ Petition No. 28269 (MS) of 2016. In fact, even the instructions received in Writ Petition No. 84445 (SS) 2017 by the Standing Counsel admit to the said fact.
Out of 14 sanctioned posts, 7 posts are to be filled by promotion and remaining by direct recruitment, that is in proportion of 50:50 in terms of Rule 10 of the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 subject to the proviso that if any promotional post cannot be filled up on account of non-availability of eligible candidates, the same shall be filled by direct recruitment.
He says that the provision of reservation in promotion was applicable earlier by virtue of Section 3(7) of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994. However, the same came to be challenged before this Court in case of P.K. Singh Vs. State of U.P. and others, reported in 2011 (29) LCD 404 and the same was declared ultra vires, subject to the protection granted therein that promotion already made shall not be disturbed. However, when the matter went up to Hon'ble Supreme Court, the provisions was not only declared ultra vires but also such declaration was given retrospective effect, meaning thereby, except for the protection available under the judgement of Hon'ble Supreme Court in Indira Sahni's case for five years i.e. up to 16.11.1997, all appointments made on a post on the basis of reservation with effect from 17.11.1997 stood nullified, as there was no provision existing for the same in the eyes of law.
Based on this, he says that normally the number of seats to be reserved is to be calculated on the basis of total strength of the cadre, but on account of the peculiar situation existing in the State of U.P. where reservation has been nullified on the promotional post such number of reserved post has to be calculated only in respect of the direct recruit posts, which in the present case are only 7 and out of these 7 based on the quota of 21% prescribed in the Act of 1994. The number of seats come to 1.47. He contends that two Schedule Caste's candidates are already working against the seven posts of Lecturer under the direct recruitment quota having been selected directly by the Board. In this Scenario, he says that if any requisition dated 16.08.2010 was sent by the Management for another post of Lecturer under the reserved category of Schedule Caste then apparently it was against the law. Therefore, if any action was taken based thereon, the same cannot be sustained in view of the subsequent decision of the Hon'ble Supreme Court in the case of U.P. Power Corporation Limited and anothers Rajesh Kumar 2012 7 SCC 1 as specially as at the time of verification of the said requisition in the year 2014 it ought to have taken notice of the judgment of Hon'ble Supreme Court which had been pronounced by then.
At this stage, the learned Standing Counsel informs that although two Schedule Castes lecturers are working in the institution, one had been appointed by transfer. The Court does not see its relevance in the context at all.
In view of this scenario, the requsitions sent for appointment of another Scheduled caste candidate as Lecturer in the institution of the petitioner of Writ Petition No. 28269 (M/S) of 2016 cannot be sustained as Section 3(7) of the Act of 1994 has been declared ultra vire with retrospective effect from 16.11.1997. Therefore, it cannot be protected at all.
Now, the predicament faced by the selectee as also this Court is as to what happens to him as obviously he is not at fault but then it is the law which has to be followed whatever the consequences are, therefore, the selectee who is the petitioner in Writ Petition No. 8445 (SS) of 2017, namely, Dr. Anurag Kureel cannot be appointed in the Institution in question. However, if he can be adjusted against any other vacancy of his category, then the Board shall conduct an exercise in this regard and send a revised panel accordingly to the concerned official for compliance as per law. Thereupon consequences shall follow accordingly.
Let the Board act upon and take a decision in this regard within three months from the date of certified copy of this order is submitted.
If any favourable decision is taken by the Board and a panel is sent in respect of the petitioner, then the D.I.O.S concerned shall act upon in accordance with the Rules 1998.
As regards the entitlement of the petitioner to salary is concerned, the same will depend upon the outcome of the aforesaid exercise and it shall be open for him to approach this Court if any unfavourable decision is taken only to the extent of his claim to salary for the period he claims to have worked.
The application for recall of the order dated 04.05.2017 is allowed only to the extent of the cost imposed in it.
Requisition sent by the Management to the Board and the select panel prepared by in so far as it relates to the educational institution in question stands quashed without prejudice to the rights of Dr. Anurag Kureel to be adjusted elsewhere.
Both the writ petitions stand disposed of.
Order Date :- 9.5.2017
Rahul/ Ashish
