Satyavir Singh Yadav vs State of U.P. and Others

B. Amit Sthalekar, J.—Heard Sri Radha Kant Ojha, learned Senior Counsel assisted by Sri Mahesh Sharma for the petitioner, Sri Gulrez Khan, learned counsel for the respondent No. 7 and Sri Upendra Singh, learned Standing Counsel for the respondents No. 1, 3, 4 and 5 and Sri Shiv Nath Singh on behalf of respondent No. 2.

At the time of admission counsel for the respondent No. 7 had sought time for filing counter affidavit but no time was sought on behalf of the respondents No. 1, 2, 3, 4 and 5 stating that the dispute was essentially between the petitioner and respondent No. 7.

In this view of the matter, the pleadings between the petitioner and the respondent No. 7 having been exchanged, the matter is taken up for final disposal at the admission stage itself with the consent of learned counsel for the parties.

Petitioner has filed this writ petition seeking quashing of the orders 12.9.2006, 17.8.2006 and 8.5.2015.

Briefly stated the case of the petitioner is that the Inter College Jatpura, Muqimpur, District Bulandshahar (the College in question) is a recognized and aided College under the U.P. Intermediate Education Act, 1921 to which the U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 also applies. One Sri Ghan Shyam Lal Gupta, lecturer (Physics) retired in 1992 and, therefore, a vacancy on the said post occurred. The post was filled up by direct recruitment but it is alleged that no requisition was sent by the Committee of Management to the U.P. Secondary Education Service Selection Board (hereinafter referred to as the Board) as provided under the U.P. Secondary Education Services Commission and Selection Boards Act, 1982. For the first time a requisition was sent to the Board along with the letter of No Objection on 23.11.2005 to adjust the respondent No. 7 against the said post.

An advertisement was also issued by the Board being Advertisement No. 1/2003 for the post of Lecturer (Physics). It is stated that the respondent No. 7 also applied against the vacancy. It is, however, stated that the advertisement was not issued as per the Rules, 1998 and no option was sought nor the post has been advertised or selection made but in view of the consent given by the Committee of Management in 2005 the respondent No. 7 was adjusted in the College by the Board through its order dated 6.9.2006 and the letter to that effect was issued by the D.I.O.S. on 12.9.2006 (impugned order). In pursuance of the said order the respondent No. 7 joined the Institution on 25.9.2006. The appointment letter was issued in pursuance of the select list prepared by the Board dated 17.8.2006.

Aggrieved the petitioner filed Writ Petition No. 63904 of 2007. In the meantime the respondent No. 7 also filed a Writ Petition No. 37077 of 2014 seeking quashing of the Resolution of the Committee of Management dated 29.6.2014 whereby the present petitioner, who was impleaded as respondent No. 5 in that writ petition was promoted as ad hoc Principal of the Institution. The two writ petitions No. 63904 of 2007 and 37077 of 2014 were heard together and disposed of by the Court by the order dated 4.9.2014 with a direction to the D.I.O.S. to consider and decide the matter. In the meantime it was directed that the Sri Satyavir Singh Yadav, present petitioner, who was working as ad hoc Principal, shall not take any policy decision and he will not withdraw any amount more than Rs. 3000/- without permission of the D.I.O.S.

Prior to filing of the above two writ petitions the respondent No. 7 had filed another Writ Petition No. 19261 of 2006, which was also disposed of by the High Court with a direction to the Director of Education (Madhyamic), U.P. Lucknow to take a decision in the matter.

In compliance of the orders of the High Court, the Director of Education (Madhyamic), U.P. Lucknow took a decision on 30.6.2006 and held that the respondent No. 7 be adjusted in some other college as a duly selected candidate. One Sri Indra Pal Singh was appointed and given joining of the post of Lecturer (Physics) in the College since April, 2006 itself.

It is stated that the respondent No. 7 then approached the U.P. Secondary Education Service Selection Board (hereinafter referred to as the Board) to adjust him in the present College and therefore, he was adjusted in the present College. In the meantime the post of Principal fell vacant on 30.6.2014 on the retirement of one Sri Chudamani Sharma. The Committee of Management of the College passed a Resolution on 29.6.2014 for handing over the charge of the Principal to the petitioner. The D.I.O.S. attested the signature of the petitioner as Principal by his order dated 1.7.2014. Aggrieved the respondent No. 7 filed Writ Petition No. 37077 of 2014 challenging the Resolution dated 29.6.2014 as well as the order of the D.I.O.S. Dated 1.7.2014. This writ petition was disposed of along with Writ Petition No. 63904 of 2007 by the High Court by the order dated 4.9.2014 with a direction to the D.I.O.S. to take a fresh decision in the matter with a further direction that the petitioner, who was working at that time as ad hoc Principal, shall not take any policy decision and shall not withdraw any amount more than Rs. 3000/- without permission of the D.I.O.S.. The petitioner filed his objections on 10.11.2014 and again on 7.2.2015. The D.I.O.S. passed an order dated 4.3.2015 (Annexure-7 to the writ petition) stating that the matter shall be decided only after disposal of Special Appeals No. 921 of 2014 and 922 of 2014 filed by the petitioner.

Aggrieved the respondent No. 7 filed Contempt Application (Civil) No. 1730 of 2015 in which notices were issued by the Court on 1.4.2015. In view of issue of notice in the Contempt Application, the D.I.O.S. passed the impugned order dated 8.5.2015. It was held that because the respondent No. 7 Vir Singh was working in the Inter College Jatpura from 25.9.2006 and is drawing salary from the State whereas the petitioner Sri Satyavir Singh Yadav is working as Lecturer (Chemistry) since 31.5.2007, therefore, the respondent No. 7 is senior to Satyavir Singh Yadav. It was further directed that since the post of Principal has fallen vacant on 30.6.2014 with the retirement of incumbent Sri Chudamani Sharma, therefore, the Committee of Management should send a fresh Resolution. Thirdly it was held that if the Committee of Management is of the view that the adjustment of Vir Singh Lecturer (Physics) or the petitioner Sri Satyavir Singh Yadav is contrary to Rules it may refer the matter to the Board.

The grievance of the petitioner is that the impugned order was passed without any notice to him. It is also stated that he was appointed under the Dying in Harness Rules on 24.7.1996 as L.T. Grade Teacher.

It is also contended in para 27 of the writ petition that the post of Lecturer (Chemistry) fell vacant due to the promotion of Sri Indra Pal Singh as ad hoc Principal in 1992 and thereafter his i.e. Indra Pal Singh, services were regularized by the order dated 26.12.2006. Indra Pal Singh retired on 30.6.2006 and on that date the regularization order was set aside by the Joint Director of Education, which was never challenged by Sri Indra Pal Singh. According to the petitioner, he was appointed as Lecturer against the 50% promottee quota on regular basis on 30.5.2007.

The further contention of the petitioner is that his appointment/promotion on the post of Lecturer was never challenged by anybody, therefore, it had attained finality. It is also stated that the respondent No. 7, Vir Singh joined the present College i.e. Inter College Jatpura on 25.9.2006 although he was selected and adjusted in another Institution i.e. Maharaj Agrasen Inter College, Deoria. It is stated that the Committee of Management of the present Institution through its letter dated 18.6.2007 wrote a letter to the respondent No. 7 as to why his appointment in the College be not cancelled in view of the judgment of the High Court passed in Writ Petition No. 40684 of 2006 (Annexure-11 to the writ petition). The respondent No. 7 submitted his reply through his letter dated 25.6.2007 accepting that if there is some such judgment or order of the High Court passed in Writ Petition No. 40684 of 2006 and the order of the Service Selection Board, the same would be acceptable to him (Annexure-12 to the writ petition).

It is also stated by the petitioner that challenging the adjustment of respondent No. 7 Vir Singh in his College the petitioner filed Writ Petition No. 63904 of 2007 in which a counter affidavit had been called and the writ petition was heard along with another Writ Petition No. 37077 of 2014 and the High Court by its order dated 4.9.2014 has disposed of both the writ petitions with a direction to the District Inspector of Schools to consider the matter and pass fresh order.

A counter affidavit has been filed on behalf of the respondent No. 7 wherein it has been stated that a requisition to the U.P. Secondary Education Service Commission was sent prior to 2005 and in any case respondent No. 7 cannot be blamed for the action of Selection Board in not advertising of vacancy of Lecturer (Physics). It is not disputed that the respondent No. 7 was selected and allotted Maharaja Agrasen Inter College, Deoria, District Deoria but Management did not allow him joining. Therefore, he approached the Service Selection Board and the Board passed another order adjusting the respondent No. 7 in P.B.A.S. Inter College, Hathras (Mahamaya Nagar). There also the Management did not allow the respondent No. 7 to join on the ground that there was only one post of Lecturer Physics and another candidate Sri Jagan Singh had already joined the said post. The D.I.O.S., Mahamaya Nagar therefore by his letter dated 16.9.2005 requested the Service Selection Board that the respondent No. 7 may be adjusted in some other College where the post is available. Respondent No. 7 also filed Writ Petition No. 19261 of 2006 with a letter/No Objection Certificate of the Management of the Inter College, Jatpura, Muquimpur, District Bulandshahar, the College in question, to the effect that a post of Lecturer (Physics) is lying vacant in the said College due to the retirement of one Sri Ram Mohan Lal Gupta since 30.9.1992 and therefore, the High Court by its order dated 6.4.2006 directed the Service Selection Board to pass fresh order for adjusting the respondent No. 7 in some other Institution. It is stated that thereafter Director of Education (Secondary) passed an order dated 30.6.2006 and the respondent No. 7 was adjusted on the post of Lecturer (Physics) in the Inter College, Jatpura, the College in question. It is stated that respondent No. 7 had also submitted his own application on 4.7.2006 requesting that he may be adjusted in the Inter College, Jatpura, on which the Service Selection Board directed the D.I.O.S., Bulandshahar to adjust the respondent No. 7 in the Inter College, Jatpura and in compliance thereof the D.I.O.S. issued a letter dated 12.9.2006 to the Management of the Inter College, Jatpura informing that the respondent No. 7 had been selected by the Board and that he be adjusted against the vacant post of Lecturer (Physics) there and in pursuance thereof the respondent No. 7 joined the Institution on 25.9.2006.

The case of the respondent No. 7, however, is that admittedly the petitioner was promoted on the post of Lecturer (Chemistry) vide promotion letter dated 30.5.2007 and 31.5.2007 issued by the Joint Director of Education and the D.I.O.S. respectively and this promotion on the post of Lecturer (Chemistry) was against a vacancy which arose out of the ad hoc promotion of Indra Pal Singh on the post of Principal by order dated 26.12.2006. The contention of the respondent is that it is another matter that the appointment/regularization of Indra Pal Singh as Principal was subsequently cancelled by order dated 30.6.2008 on the ground that the post of Principal already stood filled up by one Sri Mangal Sen on 15.4.1997. Sri Mangal Sen was not allowed to join on the post of Principal. Therefore he filed Writ Petition No. 21590 of 2001, which was disposed of. Thereafter the Director of Education (Secondary) by his order dated 13.5.2002 directed the Management to issue an appointment letter to Sri Mangal Sen and to allow him to join on the post of Principal.

Aggrieved by this order Sri Indra Pal Singh filed Writ Petition No. 37898 of 2002 which was dismissed by judgment and order dated 30.10.2006 and Special Appeal No. 1508 of 2006 filed against the said order was also dismissed by the order dated 28.11.2006. The D.I.O.S,. however, by letter dated 23.6.2006 recommended the regularization of Indra Pal Singh but by subsequent letter dated 30.6.2008 of the Joint Director of Education, the order dated 23.6.2006 was cancelled on the ground that the ad hoc appointment on the post of Principal by Sri Indra Pal Singh was obtained by concealment of facts and therefore, Sri Indra Pal Singh remained Lecturer only. It is stated that the respondent No. 7 made several complaints that if Indra Pal Singh was posted back as Lecturer, the petitioner should have been reverted as L.T. Grade Teacher but it was not done and therefore, respondent No. 7 filed Writ Petition No. 63904 of 2007. The case of the respondent No. 7 further is that after passing of the order dated 30.6.2008 Sri Indra Pal Singh sought voluntary retirement on 30.6.2008, therefore, the post of Lecture fell vacant. The petitioner cannot claim automatic adjustment against this vacancy and this vacancy ought to have been advertised for being filled up by direct recruitment or promotion as per the provisions laid down in 1998 Rules.

The facts emerging from the records are that an advertisement was issued by the Board being Advertisement No. 1/2003 for the post of Lecturer (Physics). Respondent No. 7 among others applied against this vacancy. He sought to be appointed in the Mahraja Agrasen Inter College, Deoria but the Management did not allow him to join there. Thereafter the Service Selection Board sought to adjust him in the P.B.A.S. Inter College, Hathras, Mahamayanagar but there was only one post of Lecturer (Physics) and one Sri Jagan Singh had been appointed against the said post. The District Inspector of Schools, Mahamayanagar therefore by his letter dated 16.9.2005 informed the Selection Board that the petitioner may be adjusted in some other College and there is a candid averment of the respondent No. 7 that No Objection Certificate was issued by the Inter College Jatpura. The respondent No. 7 filed Writ Petition No. 19261 of 2006 which was disposed of by the High Court with a direction to the Director of Education (Secondary) that if no vacancy exists in the Institution, he will intimate the Selection Board and the Selection Board in turn will pass a fresh order within two weeks thereafter allocating another Institution in favour of the petitioner (therein) regarding his appointment. Accordingly, the respondent No. 7 was adjusted in the Inter College Jatpura. It may be the respondent No. 7 on the letter of the Committee of Management of the College dated 18.6.2007 submitted his explanation stating that the order of the High Court passed in Writ Petition No. 40684 of 2006 and any order of Selection Board would be acceptable to him but that does not amount to an undertaking that he had waived his legal right to contest any order adverse to his interest before the High Court. The petitioner filed Writ Petition No. 63904 of 2007 challenging the adjustment of the respondent No. 7 in the College in question. It was heard along with Writ Petition No. 37077 of 2014 filed by the respondent No. 7 and both the writ petitions were disposed of by the order dated 4.9.2014 with a direction to the D.I.O.S. to consider the matter and pass fresh order.

In pursuance of the order of the High Court the impugned order dated 8.5.2015 has been passed. The D.I.O.S. Bulandshahar has held that respondent No. 7 was appointed in the Inter College Jatpura on 25.9.2006 whereas the petitioner was promoted on the post of Lecturer (Chemistry) on 30.5.2007 and therefore the respondent No. 7 is senior to the petitioner. It has also been held that the post of Principal in the College fell vacant on 30.6.2014 on the retirement of one Sri Chudamani Sharma and therefore, the Committee of Management should send a proposal to fill up the post of Principal keeping in mind the rule of seniority.

The other impugned order under challenge in the writ petition is the order dated 17.8.2006 adjusting respondent No. 7 in the Inter College Jatpura. The third impugned order dated 12.9.2006 has been issued by the D.I.O.S., Bulandshahr directing the Management of the Inter College Jatpura to issue an appointment letter to Sri Vir Singh, respondent No. 7.

Respondent No. 7 was adjusted in the Inter College Jatpura as Lecturer (Physics) and he joined the Institution on 25.9.2006. At that time the petitioner was working as L.T. Grade Teacher and he was promoted on the post of Lecturer (Chemistry) when the post fell vacant on the promotion of Indra Pal Singh as Principal. Subsequently the appointment and regularization of Indra Pal Singh was cancelled by order dated 30.6.2008 with the result that the petitioner''s status became that of L.T. Grade Teacher. It may be, that Sri Indra Pal Singh sought voluntary retirement on 30.6.2008 itself but once his regularization and appointment as Principal was cancelled his status became that of Lecturer and since the petitioner was appointed in the vacancy of Indra Pal Singh, therefore, the status of the petitioner stood restored as L.T. Grade Teacher and it is not open for the petitioner to claim that since he had already been promoted as Lecturer (Chemistry) therefore his status will not change with the change in the status of Sri Indra Pal Singh and the petitioner should be allowed to continue as Lecturer.

The contention of the petitioner, therefore, that he should be allowed to continue as Lecturer, Chemistry must necessarily be rejected and it is declared that he shall continue as L.T. Grade Teacher. It will, however, be open for the State respondents to pass appropriate order with regard to the post of Lecturer Chemistry.

So far as the adjustment of respondent No. 7 is concerned, the undisputed position is that he was selected by the U.P. Secondary Education Service Selection Board for appointment against the Maharaja Agrasen Inter College, Deoria but he was denied joining there by the Committee of Management. Thereafter the Commission sought to adjust him against the P.B.A.S. Inter College, Hathras (Mahamaya Nagar) and there also the Management declined to adjust him on the ground that one Sri Jagan Singh had already joined. Respondent No. 7 was thereafter adjusted in the Inter College Jatpura on the basis of a no objection certificate issued by the College Management. It is neither the case of the petitioner nor of the respondent No. 7 that the vacancy of Lecturer (Physics) at any point of time was re-questioned for selection by the Inter College Jatpura against the same Advertisement No. 1/2003 against which the respondent No. 7 was initially selected for appointment. The law in this regard has now been settled by a Full Bench decision of this Court in the case of Prashant Kumar Katiyar Vs. State of U.P. and Others, wherein it has been held that an unadvertised vacancy cannot be offered to a candidate who had applied for a different advertisement as he had not competed with the candidates of another advertisement.

Para 93 E of the Full Bench judgment reads as under:--

"93 (E) The interpretation, the scope and applicability of Rule 13(5) of the 1998 Rules as affirmed in the case of U.P. Secondary Education Services Selection Board (supra) is upheld as lying 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."

The contention of the respondent No. 7 that while deciding inter se dispute of seniority appointment itself cannot be quashed, must be rejected at the outset itself since the adjustment of the respondent No. 7 in the Inter College Jatpura was challenged by the petitioner in his Writ Petition No. 63904 of 2007 and this writ petition was clubbed with the Writ Petition No. 37077 of 2014 filed by the respondent No. 7 and dispose of by the High Court by its judgment dated 4.9.2015 which has resulted in passing of the impugned order dated 8.5.2015, therefore it cannot be said that the appointment/adjustment of the respondent No. 7 was being challenged for the first time only in the present writ petition and therefore the judgment of the Supreme Court in the case of K.A. Abdul Majeed Vs. The State of Kerala and Others, has no application to the facts of the present case. In K.A. Abdul Majeed (supra) the Supreme Court had rejected the challenge to the appointment of the appellant therein on the ground that said challenge was being made after a long lapse of time only when the appellant was placed above the respondent therein in the provisional seniority list. That is not the case in the present writ petition.

In this view of the matter, the impugned orders 12.9.2006, 17.8.2006 and 8.5.2015 cannot survive and are accordingly quashed.

The writ petition stands allowed.