Ramesh Chandra vs State Of U.P. And Others
2017 Latest Caselaw 5155 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 7
 
Case :- WRIT - A No. - 18166 of 2011
 
Petitioner :- Ramesh Chandra
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Vinod Kumar Singh
 
Counsel for Respondent :- C. S. C.,A.K. Yadav,Mahendra Prasad Mishra,N.K. Pandey
 

 
Hon'ble Surya Prakash Kesarwani,J.

Heard Sri Vinod Kumar Singh, learned counsel for the petitioner, learned standing counsel for respondent nos. 1 and 3, Sri A.K. Yadav, learned counsel for the respondent no.2 and Sri N.K. Pandey, learned counsel for respondent no.5.

After a requisition was made by the respondent no.4 institution, an advertisement no. 1 of 2004 was issued by the respondent No.2 inviting applications for recruitment of Assistant Teacher in Physical Education. Thus the vacancy existing in the respondent no.4 Institution was included in the advertisement no.1 of 2004. Pursuant to this advertisement respondent no.5 applied and he was allotted the roll no.081620680. He appeared in written examination as well as interview. The result was declared which was published in newspaper. The respondent no.5 secured 334.2 marks which was above the cut of select marks 331.60. Since the respondent no.5 was not given appointment and as such he filed writ petition no.68954 of 2005 (Jagbir Singh Vs. State of U.P. and another) which was disposed of by order dated 7.11.2005 as under:

"Heard Sri K.C. Shukla, learned counsel for the petitioner and learned standing counsel for the respondents no.1 and 3; Sri R.S. Parihar has accepted notice on behalf of the respondent no.2.

The contention of the petitioner is that inspite of the fact that the petitioner has obtained higher marks than the cut off merit as is evident from Annexure VI to the writ petition, yet the petitioner has not been extended the benefit of placement and appointment presumably on account of the fact that the degree in Physical Education possessed by the petitioner is not recognised. The contention of the petitioner, is not recognised. The contention of the petitioner is that the petitioner has obtained his trainee degree from Rani Bai Agnihotri Sharirik Shikshan Mahavidyalaya, Vardha (Maharashtra), which Institution is affiliated to the Nagpur University.

Sri A.K. Yadav has also been herd on behalf of the Board and he intimated that the matter has already been considered by the Board and representative degrees of such institutions have also been verified and decisions are being taken on such candidatures, which are similar to that to the petitioner. The petitioner's candidature is likely to be scrutinized very shortly and decision thereon shall also be intimated to him as expeditiously as possible preferably within a period of four weeks from the date of presentation of a certified copy of this order before the Board.

The petition is accordingly disposed of with a direction to the respondent no.2 to take a decision with respect of the claim of the petitioner in view of the facts stated herein above within the aforesaid period and intimate about the decision to the petitioner accordingly."

Consequently, the matter was re-examined by the respondent no.2 Board and the respondent no.5 was selected as per list published on 12.12.2005. The respondent no.5 was allocated the respondent no.4-Institution. After due verification order dated 17.3.2006 was issued by the respondent no.2 Board whereby the verification particulars of the respondent no.5 was sent to the D.I.O.S., Gautam Budh Nagar. Thereafter, the respondent no.4 issued an appointment letter No.NSCB/M/1010607, dated 20.4.2006 to the respondent no.5 who joined the duties as Assistant Teacher, Physical Education on 24.4.2006 in the respondent no.4 Institution. Thus the appointment of the respondent no.5 has been made in accordance with law and it does not suffer from any legal infirmity.

However, mistakenly another requisition was sent on 15.12.2005 by the respondent no.4 Institution for the post of Assistant Teacher Physical Education; although it was already subject matter of Advertisement No.1/2004. Pursuant to this subsequent requisition, an Advertisement No.1 of 2009 was issued by the respondent no.2 Board. The mistake could not be detected either by the respondent no.2 or by the respondent no.3. An advertisement was issued including the alleged vacancy in respondent no.4 institution. The petitioner applied and he appeared in written test and also in interview. He was selected and was allocated the respondent no.4 Institution where in fact no vacancy was existing and it was merely by inadvertence that a non existing vacancy was included in the advertisement no.1 of 2009. When appointment letter was not issued by the respondent no.4 Institution for reason that no vacancy exists, then the petitioner approached the respondent No.2 Board for allocation of some other institution. Since the grievance of the petitioner was not redressed by the respondent no.2 Board and as such he filed the present writ petition praying for his appointment and simultaneously challenging the selection of the respondent no.5 also.

Sri A.K. Yadav, learned counsel for the respondent no.2 Board has fairly placed the judgment of Hon'ble Supreme Court dated 23.8.2017 in Civil Appeal No.10808 of 2017 (U.P. Secondary Education Service Selection Board Vs. The State of U.P. and Ors.) in which Hon'ble Supreme Court held as under:

" Leave granted.

2. I.A. No.74173/2017 is allowed at the risk of the appellant(s).

3. The appellants are aggrieved only to the extent of the following answer in the impugned Reference Order:-

"The interpretation, the scope and applicability of Rule 13(5) of the U.P. Secondary Education Services Selection Board Rules, 1998 as affirmed in the case of U.P. Secondary Education Services Selection Board Allahabad v. State of U.P. & Ors. (Special Appeal No.146 of 2010 decided on 21.01.2011) is upheld as laying down the law correctly by confining its applicability to the vacancies that are subject matter of the same advertisement and not to such vacancies that were notified but not subject matter of the same advertisement."

4. According to the learned counsel, in case the candidates who have reported pursuant to the advice and in case they are not accommodated, their case will have to be dealt with in terms of Rule 13 of the 1998 Rules, which has been amended on 23.01.2007. The amendment, to the extent relevant, reads as follows:-

"Where a candidate selected by the Board could not join in an allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of Schools shall recommend to the Board in any other institution. On receipt of the recommendation of the District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board."

5. The issue pertains to the candidates who have already been selected but could not be accommodated for want of vacancies. In such cases, it cannot be said that the Board has no power to accommodate them. They will have to be certainly accommodated in available or arising vacancies.

6. The impugned order will stand clarified to the above extent.

7. The appeals are, accordingly, disposed of.

8. Pending applications, if any, shall stand disposed of.

9. There shall be no orders as to costs."

(Emphasis supplied by me)

On the strength of the aforequted judgment of Hon'ble Supreme Court Sri A.K. Yadav, in all his fairness, states that the Board shall consider to allocate some other institution to the petitioner where a vacancy may be existing presently pursuant to requisition received by the Board. He states that this exercise may take some time and, therefore, two months time may be granted to the respondent no.2 Board for allocation of an institution to the petitioner.

As per amended Rule 13 of the U.P. Secondary Education Services Selection Board Rules 1998, where a candidate selected by the Board could not join in an allocated institution due to non availability of vacancy or for any other reason, the D.I.O.S. shall recommend to the Board in any other institution. On receipt of the recommendation of the D.I.O.S. the Board shall allocate such candidate to another institution in a vacancy notified by the Board. Hon'ble Supreme Court, in the aforequoted judgment; has recognised power of the Board to accommodate a selected candidate in terms of Rule 13 in available or arising vacancies. The case of the petitioner squarely falls under the provision of Rule 13 of the Rules. Therefore, he deserves accommodation in terms of Rule 13 and the law settled by Hon'ble Supreme Court in the aforementioned judgment.

In view of the aforesaid, this writ petition is disposed of directing the respondent no.2 Board to consider the allocation of some other institution to the petitioner against a vacancy intimated to the Board, in terms of the aforequoted judgment of Hon'ble Supreme Court in Civil Appeal No. 10808 of 2017. The Board shall take a final decision in accordance with law regarding allocation of an institution to the petitioner within two months from the date of presentation of a certified copy of this order.

Writ petition stands disposed of.

Order Date :- 7.10.2017/vkg