U.P. Secondary Education Service ... vs State Of U.P. And 3 Others
2021 Latest Caselaw 3877 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 40
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 227 of 2021
 

 
Appellant :- U.P. Secondary Education Service Selection Board-23
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Neeraj Rai,Shailendra(Senior Adv.)
 
Counsel for Respondent :- C.S.C.,Surya Bhan Singh
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

Heard Sri Shailendra, learned senior counsel, assisted by Dr. Neeraj Rai, for the appellant; the learned Standing Counsel for the respondents 1 to 3; and Sri Surya Bhan Singh for the respondent no.4.

This intra-court appeal has been filed against the judgment and order dated 22.01.2021 passed the learned Single Judge in Writ A No. 540 of 2021 by which the writ petition of the respondent no.4 was disposed off with a direction upon the appellant to pass directions in terms of the order of the Apex Court quoted in the order.

In brief, the facts giving rise to this appeal are as follows:-

The U.P. Secondary Education Services Selection Board (for short the Board-appellant herein) issued an Advertisement No. 2/2016 inviting application for posts of Lecturer/Post-Graduate Teachers (PGT) in different subjects including PGT Chemistry existing in recognised and aided educational institutions of the State. In pursuance of the advertisement, the writ petitioner (the respondent no.4) applied for the post of PGT Chemistry under the unreserved category. He faced the selection process and was placed in the select list declared by the Board and was recommended for appointment in an institution named Vikas Inter College Khesaraha, Siddharth Nagar.

Pursuant to such recommendation, the District Inspector of Schools, Siddharth Nagar, vide letter dated 30.07.2020, directed the Manager of the institution to issue appointment letter to the writ petitioner and ensure his joining on the post of PGT Chemistry. The institution denied appointment on the ground that consequent to an exercise by the competent authority, the sanctioned strength of teachers in the institution was re-determined, as a result, there existed no vacancy. Consequently, on 05.08.2020, the writ petitioner approached the Board through representation for adjusting him on the post in any other institution as per the provisions of Rule 13(5) of the U.P. Secondary Education Services Selection Board Rules, 1998 (for short 1998 Rules). In absence of any positive action on the part of the Board, the respondent no.4 filed Writ A No. 540 of 2021 which has been disposed off by the learned Single Judge by the impugned judgment and order dated 22.01.2021.

Sri Shailendra, learned senior counsel, urged on behalf of the appellant that in a Full Bench decision of this Court in Prashant Kumar Katiyar Vs. State of U.P. & Others (Civil Misc. Writ Petition No. 16406 of 2011, decided on 19th December 2012), it was held that the applicability of Rule 13(5) of the 1998 Rules is confined to those vacancies that were subject matter of the same advertisement and not to such vacancies that were notified but not subject matter of the same advertisement. He submits that although the Board had gone to the Apex Court against the decision in Prashant Kumar Katiyar's case (supra) and, on the application of the Board, the Apex Court, by its order dated 23rd August 2017, had noticed the power of the Board to accommodate a selected candidate against available or arising vacancies but it did not specifically set aside the decision of the Full Bench of this Court in Prashant Kumar Katiyar's case (supra) and therefore the decision of the apex court should be understood in the context of that case. It has been submitted that the application moved by the Board before the Apex court was to serve an exigency that existed at that time and, therefore, any order passed thereon would not overrule the interpretation accorded to Rule 13(5) of the 1998 Rules by the Full Bench. He, therefore, submits that an omnibus direction issued by the learned Single Judge to ensure accommodation of the petitioner in available or arising vacancies would not be appropriate and justified.

Before we proceed to assess the merit of the aforesaid submission of the learned counsel for the appellant, it would be appropriate for us to notice Rule 13(5) of the 1998 Rules. Rule 13(5) of the 1998 Rules as it stands in the Rule Book with effect from 23.11.2007 reads as under:-

"(5) 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 for the adjustment of such candidate against any other vacancy notified 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."

The aforesaid Rule was interpreted by the Full Bench in Prashant Kumar Katiyar's case (supra) so as to confine its applicability to the vacancies that were subject matter of the same advertisement.

The Board went in appeal to the Apex Court against the decision in Prashant Kumar Katiyar's case (supra) and from the order of the Apex Court dated 23rd August 2017 in Civil Appeal No. 10808 of 2017, it appears, their grievance was only with respect to the interpretation regarding the scope and applicability of Rule 13(5) of the 1998 Rules accorded by the Full Bench.

On the application of the Board, the apex court, after quoting the Rule 13(5) of the 1998 Rules, in paragraph 5 of its order dated 23rd August 2017, observed as under:-

"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."

(Emphasis supplied)

The Board not being satisfied with the order dated 23rd August 2017 (supra) moved another application for clarification of the order dated 23rd August 2017 by expressing apprehension that if the order is not further clarified, their action may be in the teeth of the decision of this Court in Prashant Kumar Katiyar's case (supra). The Board, therefore, made following prayer:-

" (a) allow the instant application for clarification of order dated 23.08.2017 passed by this Hon'ble Court in Civil Appeal Nos. 10808 of 2017 and 10809 of 2017, to the extent outlined in paragraphs 14 & 15 of this application, and for directions, to the effect that the Applicant Board may proceed to accommodate the selected candidates in available or arising vacancies, without either relating or limiting such vacancies to either any advertisement or year of recruitment, or the mode and manner in which the earlier vacant posts may have been filled."

The paragraphs 14 and 15 of the above application as contained in Annexure 4 to the affidavit (at page 75 to 81 of the paper book) is extracted below:-

"14. In this regard, and in the conspectus of the facts and background of the instant case, an important aspect needs consideration and clarification by this Hon'ble Court, in order that the Applicant Board may be able to take necessary steps in letter and spirit, in furtherance of the directions by this Hon'ble Court on 23.08.2017.

As stated hereinabove, the Larger Bench of the Hon'ble High Court in its judgment dated 19.12.2012 held that filling of the advertised posts by adjustment, transfer, promotion, subject experts and compassionate cases after the last date for application in the advertisement, was contrary to the Rules. As already on record, the Board has the cases of 642 candidates pending for adjustments, who were not appointed in the allotted institutions on account of the reasons above, and who are required to be adjusted, following the enabling order dated 23.08.2017 by this Hon'ble Court.

However, in order that it may not appear or be alleged that by proceeding to adjust the 642 candidates against "available or arising vacancies", as mandated by this Hon'ble Court, the Applicant Board is acting contrary to any directions of the Larger Bench of the High Court, it is in the interest of justice that the following aspects/issues related to the instant case, may very kindly and respectfully be clarified by this Hon'ble Court, being:

(a) Whether the earlier advertised 642 posts, which have been irregularly filled by the institutions by transfer, promotions etc., and on which persons are currently working, are liable to be considered as "notified vacancies" in terms of the decision of the Larger Bench of the High Court, and in turn regarded as "available or arising vacancies" as held by this Hon'ble Court, and in case the same are regarded as vacant or available for purposes of adjusting the 642 candidates, whether in the ensuing/probable litigation at the instance of such displaced persons, the Selection Board would or should at all be regarded as being responsible or at fault?

(b) Whether in proceeding to adjust and accommodate the selected candidates against other notified vacancies, not confined to those vacancies which are advertised, in terms of the order dated 23.08.2017 passed by this Hon'ble Court, the same may be contrary to some portions of the Larger Bench judgment of the High Court dated 19.12.2012, the Applicant Board may not be seen as committing any contempt of the said High Court order?

15. Furthermore, vacancies which are notified in different institutions, invariably relate to the year of recruitment which would be different in most cases, and in respect of which the order dated 23.08.2017 passed by this Hon'ble Court finds no mention. It is noteworthy that irrespective of the period when the vacancy arose and the year of recruitment, which as per section 2(1) of the 1982 Act means a period of twelve months commencing from the first day of July of a calender year, during which the Management and the Inspector of Schools are mandated to notify the vacancies to the Board in terms of Rule 11 of the 1998 Rules, the year of recruitment for purposes of adjustment under Rule 13(5) ought to be the actual appointment of the selected candidate, without any other interpretation on the part of the selected candidates who have been adjusted or those desirous of being appointed on such available or arising vacancies.

This aspect would also require clarification, since the adjustments to be made would invariably relate to accommodation on available or arising vacancies, not necessarily subject matter of any advertisement, nor would relate to the year of recruitment in respect of the vacancies, as mandated by Rule 11.

In this regard, reference may be made to Rule 11 of the 1998 Rules, as under :

"Determination and notification of vacancies:

(1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, to the Board in the manner hereinafter provided.

(2)(a) The statement of vacancies for each category of post to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade, and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31, with a copy thereof to the Joint Director."

It would hence be imperative in the interest of justice in order that the Board may proceed to exercise its power of adjustment of selected candidates, and to remove any further difficulty or prevent litigation, that this Hon'ble Court may very kindly be pleased to clarify which recruitment year would be allotted to the selected candidates so adjusted and accommodated : (i) the year of recruitment relatable to the notified vacancy or (ii) the year in which such selected candidate is actually accommodated."

The clarification sought by the Board was not opposed and was accepted by order dated 17th August 2018 in terms of the prayer (a) extracted above. The order dated 17th August 2018 is extracted below:-

"ORDER

1. This is an application for clarification/direction. Prayer (a) of the application reads as under:-

"(a) allow the instant application for clarification of order dated 23.08.2017 passed by this Hon'ble Court in Civil Appeal Nos. 10808 of 2017 and 10809 of 2017, to the extent outlined in paragraphs 14 & 15 of this application, and for directions, to the effect that the Applicant Board may proceed to accommodate the selected candidates in available or arising vacancies, without either relating or limiting such vacancies to either any advertisement or year of recruitment, or the mode and manner in which the earlier vacant posts may have been filled."

2. The application is not opposed by the other side.

3. The application is allowed in terms of the prayer (a), extracted above.

4. We direct the applicant (s) to do the needful in terms of the clarification positively, within eight weeks from today.

5. We make it clear that no further extension of time will be granted in this regard.

6. We request the High Court to defer all the contempt proceedings for the said period of eight weeks.

7. Pending application (s), if any, shall stand disposed of."

Once, the Board, on its own, has sought clarification to accommodate the selected candidates in available or arising vacancies, without limiting it to vacancies advertised or year of recruitment, keeping in mind the earlier direction that the Board will have to accommodate the selected candidates in available or arising vacancies, no clarification of the directions issued by the Apex Court, as prayed for by the learned counsel for the appellant, is permissible at our level.

As the learned Single Judge has by the impugned order only required the Board to comply with the directions issued by the Apex Court in its order dated 23rd August 2017 in Civil Appeal No. 10808 of 2017, no fault can be found with the impugned order. The appeal is misconceived and is dismissed.

Order Date :- 18.3.2021

Sunil Kr Tiwari