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PRAVESH KUMAR SHARMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Pravesh Kumar Sharma v. State Of U.P. And Others - WRIT - A No. - 14819 of 2007 [2007] RD-AH 16038 (26 September 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.26

Civil Misc. Writ Petition No. 14819 of 2007

Pravesh Kumar Sharma

Vs.

State of U.P.& others

Hon. Shishir Kumar, J.

By means of the present writ petition, the petitioner has approached this Court for quashing the orders dated 6.3.2007, 1.2.2007 and 8.1.2007 passed by respondent No.2, (Annexures 10, 11 & 12 to the writ petition). Further prayer is to issue a writ in the nature of mandamus directing the respondents not to give affect to the order dated 6.3.2007. Further prayer is to issue a writ in the nature of mandamus commanding the respondents to cancel the selection/appointment of respondents No. 5 to 7 dated 11.6.2006.

It appears that certain vacancies in class IV fell vacant due to retirement of three Class- IV employees in Kishori Raman Girls Inter College, Mathura which is a recognised institution. The Principal of the institution informed the said fact and sought permission from District Inspector of Schools for filling up the said three vacancies. The District Inspector of Schools vide its order dated 23.3.2006 has granted permission. On the basis of permission granted by the District Inspector of Schools, the advertisement, as required, was published in "Dainik Jagaran" on 5.6.2006 and interview was held by a duly constituted Selection Committee on 11.6.2006. The petitioner who was also a candidate for said post, appeared in the said interview held on 11.6.2006. On the same day, the result was declared and respondents No. 5 to 7 were selected and appointments letters were issued in their favour. When the petitioner was not selected, he approached this Court for the following reliefs:-

"i. Issue a writ, order or direction in the nature of mandamus commanding the respondents to issue appointment letter to the petitioner.

ii. issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

iii. Award costs of the petition to the petitioner."

In that writ petition the petitioner has also challenged the constitution of the Selection Committee. The writ petition filed by the petitioner (No.45042 of 2006) was disposed of finally vide its order dated 22.8.2006. The order passed in the said writ petition is quoted below:-

"Heard learned counsel for the parties.

Petitioner seeks appointment by direct recruitment on Class-IV posts in recognized Intermediate College. The papers in that regard are engaging the attention of the District Inspector of Schools, Mathura.

In the opinion of the Court appointment on Class-IV post can be made by direct recruitment only if the conditions mentioned in Regulations- 103 to 106 of Chapter-III of the Regulation framed under the U.P. Intermediate Education Act are complied with. It is, therefore, necessary that the District Inspector of Schools, Mathura shall first examine (a) whether any person on superannuary post is working in the district on compassionate ground (b) whether any application for compassionate appointment against Class-IV post is pending consideration in the district if both the aforesaid conditions do not exist the District Inspector of Schools shall proceed to consider the claim of the petitioner for grant of financial approval to the appointment. It is made clear that only if the first two conditions do not exist that there can bean occasion for direct recruitment being made.

With the aforesaid direction observations, the present writ petition is disposed of finally."

In the meantime, all the relevant papers were sent to the District Inspector of Schools for granting approval for the purposes of payment of salary. The District Inspector of Schools vide its order dated 6.3.2007, Annexure 12 to the writ petition, has approved the appointment of respondents No.5 to 7 for the purposes of payment of salary. Aggrieved by the aforesaid order of approval, the petitioner has approached this Court.

It has been submitted by the learned counsel for the petitioner that the Selection Committee was not constituted according to Rules. Further the order passed by this Court in Writ Petition No.45042 of 2006 has not been complied with as there were various candidates whose applications were pending under the Dying in Harness Rules for consideration of appointment. Therefore, no appointment can be made and this is in clear violation of Regulations 103 to 106 of Chapter III of the Regulations framed under the U.P. Intermediate Education Act. A further submission has been made that the letter of the District Inspector of Schools dated 8.102007 sent to the petitioner also confirms that there were various applications pending under the Dying in Harness Rules and no quality point marks have been provided, therefore, the selection is bad.

Sri Siddharth Singh, Sri Pramod Kumar Sharma and Sri Gaurav Sharma advocates who appears for respondents No. 5 to 7 have submitted that as the petitioner has already appeared in the selection process and he was not selected, therefore, at this stage, he cannot challenge the constitution of the Selection Committee. Further submission was made that the interview was held on 11.1.2006 and the petitioner had filed a writ petition subsequent to that challenging the constitution of the Selection Committee with other various reliefs but no relief was granted in the earlier writ petition. Therefore, the writ petition is not maintainable for the reliefs which have already been denied to the petitioner in the earlier writ petition.

The Learned Standing Counsel has also filed a counter affidavit on behalf of the District Inspector of Schools. It has been stated in the counter affidavit that on the date when the permission for making the selection of three Class- IV employees were granted by the competent authority, at that time, there was no application for consideration pending under the Dying in Harness Rules. A specific averment has been made in para 3 of the counter affidavit. It has further been stated in counter affidavit that on the basis of the request made by the Principal for filling up the three Class- IV vacancies, a permission was granted and it was published in two newspapers and the proper procedure was followed and after that, the appointments were made. On the date when the permission was granted, no application under the Dying in Harness Rules of any candidate was pending. Further as on the basis of the order which was passed on 22.8.2006 in the writ petition filed by the petitioner, the matter was referred to the Regional Level Committee, and the Regional Level Committee vide its order dated 21.2.2007 has decided to grant the approval to the appointment of respondents No.5 to 7 and on the basis of the decision taken by the higher authority, an order approving the appointment of respondents No. 5 to 7 was passed.

I have heard the learned counsel for the parties. There is no dispute to this effect that the petitioner appeared in the selection proceedings and he has never challenged the constitution of the Selection Committee before appearing in the interview. It was only after when the petitioner was not selected, he challenged the constitution of the Selection Committee that it is not in accordance with rules. From the record, it is clear that after selection of respondents No. 5 to 7 in the interview dated 11.6.2006, the petitioner filed a writ petition before this Court claiming the releifs which have substantially being claimed, in the present writ petition. One of the main prayer in that writ petition was to issue a direction to the respondents to issue appointment letter to the petitioner. In spite of the fact, petitioner having knowledge that the interview has already been held and selection process has already come to an end. He sought this relief though in the various paragraphs in the earlier writ petition, petitioner has mentioned regarding the constitution of the Selection Committee though that releif was not granted. The Hon'ble Single Judge while considering writ petition of petitioner only directed the respondents to take into consideration Regulations 103 to 106 of the Regulations framed under the U.P. Intermediate Education Act. Therefore, it will be presumed that various reliefs sought by the petitioner in the earlier writ petition have not been granted. As regards, the direction issued by this Court, it is clear from the counter affidavit filed on behalf of the District Inspector of Schools that on the date when the vacancy was notified and permission was granted, there was no application pending for consideration for appointment under the Dying in Harness Rules.

It is well settled in law that a candidate who has not been selected, cannot challenge the constitution of the Selection Committee if the candidate has participated in the selection process. The legality and illegality of the constitution of the Selection Committee can only be challenged prior to the participation of the incumbent in the selection process. After participation, a candidate who has not been selected, cannot challenge the constitution of the Selection Committee. As regards, the other arguments raised on behalf of the petitioner are concerned, have got no force as from the record, it is clear that the proper procedure as provided under the rules and regulations have been followed and the respondents No.5 to 7 have been granted appointments and their appointments have already been approved by the District Inspector of Schools.

In view of the aforesaid fact, I see no justification to interfere in the writ petition. The writ petition is devoid of merits and is hereby dismissed.

No order is passed as to costs.

26.9.2007

V.Sri/-


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