Sanjay Kumar vs State of U.P. and Others

Arun Tandon, J.—These three writ petitions pertain to the post of Lecturer Civics in Jeewan Ram Inter College, Mau. All three, therefore, are clubbed together and are being decided by means of this common judgment.

I have heard Sri Siddharth Khare, Advocate on behalf of Sanjay Kumar, Sri A.K. Yadav, Advocate on behalf of the U.P. Secondary Education Services Selection Board, Sri Ali Hasan and Harendra Pratap, Advocates on behalf of Devi Prasad Gupta and Standing Counsel on behalf of the State Education Authorities in all three writ petitions.

Facts in short, giving rise to all these writ petition, are as follows:

The vacancy on the post of Lecturer Civics in Jeewan Ram Inter College, Mau, which is a recognized and aided Intermediate College is subject matter of dispute in the present three writ petitions.

According to Petitioner Sanjay Kumar, the vacancy on the post of Lecturer Civics of the institution was requisitioned and was ultimately advertised under Advertisement No. 2/2004 by the U.P. Secondary Education Services Selection Board. The select panel in pursuance thereof was notified on 15th February, 2006. Petitioner Sanjay Kumar was empanelled for the post in question within the reserved category of scheduled caste. He was not permitted to join in the said institution even after such empanelment only because one Devi Prasad Gupta was approved for transfer on the same post under order of the Additional Director dated 04.05.2006 and that he actually joined on transfer on 12.05.2006. Sri Sanjay Kumar, therefore, filed Writ Petition No. 42437 of 2006. The Writ Court passed an interim order dated 08.08.2006 requiring the District Inspector of Schools to take all appropriate action in accordance with law within two weeks for the appointment of the selected candidate.

The Additional Director of Education (Secondary) is stated to have stayed the order of transfer of Devi Prasad Gupta dated 04.05.2006 by means of subsequent order dated 01.09.2006. This led to the filing of second writ petition by Sri Devi Prasad Gupta, being Writ Petition No. 52081 of 2006, wherein an order of status quo has been granted by the Writ Court.

Sanjay Kumar was thereafter adjusted against the vacancy available in Bapu Inter College, Kopaganj, Mau under order of the U.P. Secondary Education Services Selection Board dated 22.07.2008. He was not permitted to join in the said institution also. The U.P. Secondary Education Services Selection Board therefore issued a fresh order of adjustment dated 22.10.2008, whereby Sanjay Kumar was adjusted against the vacancy in Neta Subhash Krishi Sainik Inter College, Maharajganj. He has not been permitted to join even in the said institution. He, therefore, filed third writ petition, being Writ Petition No. 17871 of 2010, for his appointment in terms of the select panel in some suitable institution.

This Court made a pointed query to the counsel for the U.P. Secondary Education Services Selection Board as to whether vacancy in the Bapu Inter College and Neta Subhash Krishi Sainik Inter College were subject matter of Advertisement No. 2/2004 or not, the answer given by Sri A.K. Yadav, Advocate is in negative. This Court has, therefore, no hesitation to hold that the adjustment of Sanjay Kumar against non-advertised vacancy, as per Advertisement No. 2/2004, is totally illegal and uncalled for. Reference-Judgment in the case of Satish Kumar v. State of U.P. and Ors. passed in Writ Petition No. 46861 of 2005 decided on 22nd September, 2006.

The issue to be determined by this Court however remains as to whether Sri Sanjay Kumar is entitled to be appointed in the institution for which he was empaneled under the select panel dated 15.02.2006 and as to whether the transfer of Sri Devi Prasad Gupta as per the approval letter of the Additional Director of Education dated 01.09.2006 is in accordance with law or not.

A Division Bench of this Court has explained in the case of Asha Singh Vs. State of U.P. and Others, that no transfer can be effected against a vacancy which has been subject matter of advertisement by the U.P. Secondary Education Services Selection Board.

The only dispute which is to be determined by this Court is as to whether the vacancy of Jeewan Ram Inter College, Mau was subject matter of Advertisement No. 2/2004 or not. In case the vacancy was so advertised, the transfer of Sri Devi Prasad Gupta would be rendered illegal in view of the Division Bench judgment of this Court and therefore void u/s 16 of the U.P. Secondary Education Services Selection Board Act, 1982. In that circumstance it has to be held that the vacancy continues to exist, against which Sanjay Kumar has to be appointed.

Since there was a serious dispute qua the advertisement of the vacancy under Advertisement No. 2 of 2004, this Court required the U.P. Secondary Education Services Selection Board through its Secretary to file an affidavit disclosing all relevant documents in respect of the requisition received for the post in question. It may be clarified that under Advertisement No. 2 of 2004 only number of vacancies for the subject of Civics were advertised without disclosing the institutions where they were available. Therefore, the only material documents, which could establish as to whether the post in dispute was subject matter of Advertisement No. 2 of 2004, are the relevant documents pertaining to the requisition.

In compliance to the order of the Court the Secretary, U.P. Secondary Education Services Selection Board has filed an affidavit. It is stated that the vacancy was requisitioned and was subject matter of Advertisement No. 2 of 2004. From the document brought on record along with affidavit filed by the Dy. Secretary, Nawal Kishore on behalf of U.P. Secondary Education Services Selection Board as Annexure-1, this Court finds that the requisition forwarded by the District Inspector of Schools under covering letter dated 27.12.2003 bears the signature of the Manager as well as Principal of the institution as is required under the prescribed proforma referable to Rule 10 of The U.P. Secondary Education Services Selection Board Rules, 1998.

This document is disputed by the counsel for the Respondent Devi Prasad Gupta and for the purpose reliance has been placed upon Annexure-1 to the counter affidavit filed today, which according to him is the requisition forwarded by the institution. However, on examination of the same, the Court finds that it has not been counter signed by the Manager of the institution and there is no material which could demonstrate that such requisition was forwarded by the District Inspector of Schools to the U.P. Secondary Education Services Selection Board. The two requisitions are also in variance, so far the number of posts are concerned as well as the category to which the vacancy on the post of Lecturer Nagrik Shastra is to be reserved.

However, both the requisitions do record that the vacancy on the post of Lecturer Nagrik Shastra is to be filled up by direct recruitment on the recommendation of the Selection Board.

In view of the aforesaid, this Court has no hesitation to record that the vacancy of Lecturer Civics in Jeewan Ram Inter College, Mau was subject matter of Advertisement No. 2 of 2004 by the U.P. Secondary Education Services Selection Board. Once the aforesaid conclusion is reached, the transfer of Devi Prasad Gupta against the said vacancy in the year 2006 is rendered void in view of the judgment of the Division Bench of this Court in the case of Asha Singh (supra). Consequently, it is held that the vacancy of Lecturer Civics continues to exist in the institution in the eyes of law and therefore Sri Sanjay Kumar is entitled to be appointed against the said vacancy in terms of the select panel notified on 15th February, 2006. The transfer of Devi Prasad Gupta is held to be a nullity.

Accordingly, all the three writ petitions are disposed of by providing as follows:

Sanjay Kumar be offered appointment in terms of the notified select panel dated 15.02.2006 as Lecturer Civics in Jeewan Ram Inter College, Mau. Devi Prasad Gupta shall be at liberty to report back to his original institution from where he was transferred as Lecturer Civics. The District Inspector of Schools concerned may take all appropriate action for the purpose.