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Judgment
Rakesh Tiwari, J.—Heard Sri K.P. Shukla, counsel for the petitioner and the standing counsel, who has accepted notice on behalf of the respondents.
A caveat application has been filed by Sri A.K. Singh and a preliminary objection is raised by Sri H.N. Singh, who is appearing as senior alongwith Sri A.K. Singh, that term of the committee of management has expired on 6.6.2007 and therefore the present writ petition filed by the erstwhile committee of management is not maintainable.
The counsel for the petitioner submits that a resolution had been passed by the committee of management on 25.2.2007 extending the term of the committee of management from three years to five years, and as such the submission made by Sri H.N. Singh that the term of the committee of management has expired is not correct.
He further submits that an authorised controller has been appointed in the institution only to compel the committee of management to appoint one Rakesh Bharadwaj by way of promotion; that appointment on the post of lecturer in Chemistry is to be made by a scheduled caste candidate by direct recruitment and that no scheduled caste candidate is available for appointment on the said post.
It appears that Section 16-A of the UP. Intermediate Education Act, 1921 which deals with scheme of Administration, provides that whenever term of the committee of management is enhanced or any amendment is made in the scheme of administration, prior approval of the Director of Education is required.
Admittedly, no such prior approval has been taken and it appears that the Director of Education has not passed any order in this regard. Furthermore, it is settled law that the benefit of enhancement of the term would not be available to the committee of management currently in office, but shall be available after formalities are complete from the next elections after the term of the committee of management in office is over unless otherwise provided in the Scheme of Administration. In the circumstances, the petitioner''s committee of management has become time barred and cannot be said to be in existence.
It also appears from the record that earlier one Km. Poonam was selected by the Selection Board and she had jointed the post as direct recruitment. It is stated that since there was no vacancy, Writ Petition No. 41961 of 2006, Rakesh Bharadwaj v. State of U.P. and Ors., was filed which was allowed on 9.5.2007 in the following terms:
In the matter of promotion, no akin provision has been provided for as no determination is required on said front, as 50 per cent of the total vacancies of lecturers, has to be filled up necessarily by way of promotion, by plain and simple calculation and claim of every eligible candidate has to be considered, even without having applied for the same and in case no one eligible is there, then post may be filled in by way of direct recruitment. It is only after promotion quota of 50 per cent stands exhausted, the Management is empowered to determine the vacancy to be filled in by way of direct recruitment Once in the institution concerned, in particular year of recruitment, if promotion quota is not full, then firstly steps will have to be undertaken for filling up the said post by way of promotion and only when no eligible candidate are there, then steps will be taken to fill up the same by way of direct recruitment. Appointment by selection Board, by way of direct recruitment takes ample time, keeping this in mind procedure for promotion has been simplified by providing that claim has to be considered even without applying for, and said claim of promotion is to be considered by Regional Selection Committee, constituted u/s 12(1) of U.P. Act No. V of 1982. The idea behind the same is interest of students and the institution and to give incentive to teacher also who is waiting for his turn to be considered for promotion. This view shall prevent arbitrariness and undaunted discretion on the part of the authorities, specially the Management in picking and choosing and non suiting claim of teacher who is otherwise eligible for promotion, and post under 50 per cent quota is still lying vacant but his claim shall not be considered, as authorities and management has chosen to fill the same by way of direct recruitment. Determination, implicits in itself objective determination and not arbitrary, whimsical and mechanical determination to defeat otherwise legitimate claim of others. In the present case, no objective consideration has been made as to why promotion quota will not be given precedence in spite of its availability; as to why post in question has again been reserved for SC category post ignoring the roster points. In this backdrop of situation, legitimate rights of petitioner has been infringed, as such, he has every authority to question validity of selection proceedings.
Consequently, recommendation made in favour of Smt. Poonam is quashed. Quashing of the aforementioned recommendation, will not prevent Smt. Poonam from approaching to U.P. Secondary Education Service Selection Board for consideration of her claim in accordance with Sub-rule (10) of Rule 12 of aforementioned Rules against validly notified and advertised vacancies, as per her merit position of Advertisement No. 2 of 2004.
With these observations, the writ petition is allowed. No order as to cost.
Against the above judgment, Special Appeal No. 554 of 2007, Km. Ponam v. State of U.P. was filed which was also dismissed on 5.1.2008 with observations as under:
The manner and the procedure laid down for recruitment under the 1982 Act is mandatory and any appointment made in transgression thereof should be illegal and void. The Hon''ble Apex Court considering Section 16 of the Act of 1982, held that such appointment would not confer any right on the appointee since Section 16 is mandatory. In Divya Dip Singh and others Vs. Ram Bachan Mishra and others, the Apex Court held as under:
Any appointment made in transgression thereof is illegal appointment and is void and confers no right on the appointees.... Section 16 is mandatory, any appointment in violation thereof is void.
Thus, both the aforesaid issues formulated above are answered accordingly and it is held that the requisition sent by the Management for the vacancy in question and the appointment of the appellant made thereon being contrary to law, is illegal. We therefore do not find any legal and factual error in the judgment of the Hon''ble Single Judge and thus there is no reason to interfere with the same. However, looking to the equitable aspect of the matter as there is no fault on the part of the appellant in joining the institution in question and she had no option in view of the recommendation of the Board and was required to submit joining within the specified period as per Rule 13 of the Rules, it is provided that it would be open to the appellant to approach the Selection Board within one month to consider her claim and adjust her against the existing vacancy validly notified and advertised alongwith the vacancy in question. The Selection Board, we have no doubt, shall consider the matter sympathetically and take decision expeditiously, preferably within four weeks from the date of filing of such representation by the appellant.
With the above observation, this special appeal is dismissed. There shall be no order as to cost.
It has been held in Civil Misc. Writ Petition No. 4017 of 2007, Smt. Suman Tajeja v. State of U.P. and Ors., decided on 19.2.2007 and relied on by the counsel for the petitioner, that when no suitable scheduled caste candidate is available for promotion, the post may be filled up by direct recruitment of scheduled caste candidate as
Since in the instant case, no scheduled caste candidate is available for promotion to the post of lecturer in Chemistry which is to be filled up by way of promotion, recourse to direct recruitment may be made for filling up the post by scheduled caste candidate.
In the circumstances that the writ petition is not maintainable by a time barred committee of management, it is accordingly dismissed. The concerned authorities may, however, in view of law cited above, fill up the post of lecturer in Chemistry strictly in accordance with law within a reasonable period of two months after determining the fact whether any suitable candidate for filling up the said post is available or it is to be filled up by direct recruitment by a scheduled caste candidate. No order as to cost.