Allahabad High Court
Smt. Sholam Sharma vs State Of U.P. And 7 Others on 22 March, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 2682 of 2021
Petitioner :- Smt. Sholam Sharma
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Babboo Ram
Counsel for Respondent :- C.S.C.,Pradeep Singh Sengar
Hon'ble Ashwani Kumar Mishra,J.
Heard learned counsel for the petitioner, Dr. A. N. Singh, learned Standing Counsel for the State and Sri Akash Rai, learned counsel for respondent No.2.
This petition has been filed for a direction upon the respondents to consider petitioner's representation dated 09.09.2020, and for restraining respondent no.8, who has been selected for appointment on the post of Lecturer in Sanskrit by the Panel issued by the Board on 15.01.2021.
According to petitioner he has been appointed by the Managing Committee of the Institution because regular selection had not been made by the Board. Reliance is placed upon the provisions of Section 16-E(11) of the Intermediate Education Act, 1921 in order to submit that the appointment of petitioner is as per law. It has also been stated that since petitioner has already been appointed, it would not be open for the Commission to place a selected candidate in the institution against the post held by the petitioner.
The petition is opposed by learned counsel for the Commission, who has invited the attention of the Court to Section 16-E(11) of the Intermediate Education Act, 1921, which reads as under:-
''11. Notwithstanding anything contained in the foregoing sub-sections, appointments in the case of a temporary vacancy caused by the grant of leave to an incumbent for a period not exceeding six months or [by death, termination or otherwise] of an incumbent occurring during an educational session, may be made by direct recruitment or promotion without reference to the Selection Committee in such manner and subject to such conditions as may be prescribed :
[Provided that no appointment made under this sub-section shall, in any case, continue beyond the end of the educational session during which such appointment was made.]"
It is apparent that once the institution is brought within the purview of the U.P. Secondary Education Service Selection Boards Act, 1982 (hereinafter referred to as the Act of 1982) any appointment against substantive post can be made only in accordance with such act or else the appointment itself would be rendered void by virtue of Section 16(2) of the Act of 1982. It is admitted that the post against which petitioner is claiming appointment had fallen substantively vacant in a previous academic session and, therefore, the Committee of Management had already sent requisition for regular appointment to be made against it. So far as Section 16-E(11) of the Act is concerned, any appointment made thereunder would have to be only for the academic session against a fortuitous vacancy and not substantive vacancy. Such appointment otherwise cannot continue beyond the academic session. The specific mandate of Section 16 of the Act cannot be violated on any consideration of equity, particularly as regular appointment has now been made and the regularly selected candidate is available for joining. This Court in Writ Petition No.6124 of 2015 has elaborately dealt with the proposition of law. The judgment, which has been relied upon by the learned counsel for the petitioner i.e. Sushil Kumar Yadav (Supra), as affirmed by the Division Bench merely permitted appointment to continue for the academic session in the interest of education. Such appointment cannot be stretched in any manner to oust a regularly selected candidate. Respondent No.8 having been placed in the institution as a selected candidate by the Board, there would be no justification to deny a regularly selected candidate to work.
Writ petition lacks merit and is accordingly, dismissed.
Order Date :- 22.3.2021
Abhishek Singh
