Over 2 lakh Indian cases. Search powered by Google!

Case Details

THE C/M SRI DEHATI INTER COLLEGE THRU' MANAGER AJAY KUMAR versus STATE OF U.P. THRU' SECRETARY HIGHER SECONDARY EDU. & OTHERS

High Court of Judicature at Allahabad

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


The C/M Sri Dehati Inter College Thru' Manager Ajay Kumar v. State Of U.P. Thru' Secretary Higher Secondary Edu. & Others - SPECIAL APPEAL No. - 1225 of 2007 [2007] RD-AH 16408 (5 October 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. 34

Special Appeal No. 1225 of 2007

The Committee of Management

Sri Dehati Inter College, Navilganj

Achalda, Auraiya through its Manager

Ajay Kumar .....Appellant

Vs.

State of U.P. & Ors. .....Respondents

And

Special Appeal No. 1226 of 2007

The Committee of Management

Sri Dehati Inter College, Navilganj

Achalda, Auraiya through its Manager

Ajay Kumar .....Appellant

Vs.

State of U.P. & Ors. .....Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. Arun Tandon, J.

These special appeals have been filed by the Committee of Management Sri Dehati Inter College, Navilganj, district Auraiya against the judgment and order of the Hon'ble Single Judge passed in Writ Petition No. 63970 of 2006 connected with Writ Petition No. 68484 of 2006 dated 17.08.207, whereby the writ petition filed by the Committee of Management has been dismissed while that filed by Aparna Singh has been allowed. A direction has been issued to the Committee of Management to offer appointment to selected candidate namely Aparna Singh.

The facts on record of the present appeal are a glaring example as to how the officers of the U.P. Secondary Education Services Selection Commission/Board (hereinafter referred to as 'Selection Board') constituted under the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as Act, 1982), the office of the District Inspector of Schools, the Committee of Management of the institution concerned have colluded amongst themselves to flagrantly violate the statutory provisions of Act, 1982 as amended from time to time as also the rules and regulations framed there under, thereby a situation has been created for generation of uncalled for litigation. This Court is faced with an order whereby even in absence of statutory documents being produced by any of statutory authorities/ respondents, appointment has been directed to be offered to a person said to be selected by the Selection Board who in turn would be entitled to payment of salary through public exchequer. Such a situation cannot be approved of by this Court.

The Selection Board was created nearly 25 years ago under the provisions of the Act, 1982 and even today the statutory provisions of the Act and Rules framed there under are not being complied with in letter and spirit. This only results in illegal selections/appointments and a cause for litigation being generated. Situation like in the case at hand could have been easily avoided if the provisions of Act, 1982 had been followed by the persons concerned. The Court has to see and to ensure that law is complied without any aberration. Stronger steps for ensuring strict compliance of the statutory provisions have therefore to be taken and actions against all responsible to be recommended.

The facts giving rise to the present special appeal are as follows:

Sri Dehati Inter College, Navilganj, district Auraiya (hereinafter referred as to 'institution') is an institution aided and recognized under the Intermediate Education Act, 1921 (hereinafter referred as to 'Act, 1921). The provisions of the said Act, 1921 as well as those of the U.P. High School and Intermediate Colleges (Payment of Salaries to Teachers and other Employees) Act, 1971 (hereinafter referred as to 'Act, 1971') as also those of Act, 1982 and rules and regulations framed there under are fully applicable to the teachers of the said institution.

In the institution 22 post of L.T. Grade Teachers have been created. According to the Committee of Management of the institution, 16 out of these posts had been filled at the relevant time, out of which 2 teachers were members of scheduled caste, 6 teachers were of other backward class category, while 8 teachers were from general category. According to the Committee of Management the remaining 6 posts were to be filed in the following manner, 2 posts from scheduled caste category candidates and 4 posts from the general category candidates. According to the institution these 6 vacancies were notified to the District Inspector of Schools vide letter dated 20.10.2004. The U.P. Secondary Education Services Selection Board is alleged to have advertised the vacancies vide Advertisement No. 1 of 2005 published on 15.09.2005. After the selections were over, the following select panels were declared in respect of the institution:

1. On 23.06.2006 for Math Subject, wherein Aparna Singh belonging to general category is alleged to have been empaneled for appointment as L.T. Grade Teacher in the institution (Serial No. 6).

2. On 23.06.2006 for Biology Subject, wherein Nidhi Saxena belonging to general category has been empaneled for appointment as L.T. Grade Teacher in the same institution at (Serial No. 9).

3. On 17.07.2006 for Art Subjects, wherein Jitendra Yadav belonging to other backward class category has been empaneled for appointment as L.T. Grade Teacher in the institution (Serial No. 15).

All these three teachers have not been offered appointment by the Committee of Management.

4. On 21.06.2006 one Nisha Gupta was empaneled against the post of L.T. Grade Teacher Home Science in the institution (Serial No. 7),

5. On 12.06.2006 one Anand Shukla was empaneled against the post of Assistant Teacher English in the institution (Serial No. 16) and 6. On 23.06.2006 one M.N. Pandey was empaneled for the post of Physical Training Instructor (L.T. Grade) for the institution (Serial No. 5).

These three candidates in fact have been offered appointment by the Committee of Management and are said to be working in the institution.

It is admitted on record that all the six teachers, three of whom have been offered appointment and three of whom refused appointment, have been empaneled by the U.P. Secondary Education Services Selection Board in pursuance to the same Advertisement No. 1/2005 belong to the general category. The justification given for appointment not being offered to the first three selected candidates by the Committee of Management is that the vacancies against which empanelment has been made in favour of Aparna Singh and Nidhi Saxena are reserved for scheduled caste category candidates and therefore no general category candidate can be offered appointment. With regards to Jitendra Yadav it has been stated on behalf of the petitioner Committee of Management that the vacancy is within the open category and therefore other backward class candidate cannot be offered appointment.

To be precise the specific stand of the Committee of Management is that the post of Assistant Teacher Biology and that of Hindi and Sanskrit had been notified as reserved for scheduled caste and therefore no general category candidates can be recommended nor can be appointed. Similarly the post of Assistant Teacher Arts was for open category therefore other backward class category candidate cannot be appointed. Therefore the Committee of Management has offered appointment to three teachers, vacancies whereof were notified within the general category, and has refused appointment to three teachers who belong to categories other than the category for which the vacancies were notified.

This led to the filing of two writ petitions giving rise to the present special appeals. Writ Petition No. 63970 of 2006 has been filed by the Committee of Management for quashing the orders of the education authorities whereby action has been taken against the Committee of Management for not offering appointment to selected candidates. While Writ Petition No. 68484 of 2006 has been filed by Aparna Singh one of the selected candidates for a writ of mandamus being issued to the Committee of Management to offer appointment to her in term of her empanelment by the Selection Board.

The Single Judge for examining the stand of the Committee of Management vide a specific order required the U.P. Secondary Education Services Selection Board, the District Inspector of Schools as well as the Manager of the institution to produce the requisitions, which were made in respect of the six vacancies. The original records from the office of the District Inspector of Schools and Selection Board and the institution were summoned. The Single Judge, after examining the records, has recorded a categorical finding that absolutely no documents were available in the office of the District Inspector of Schools, in the office of Selection Board or with the institution which could establish as to under which category (reserved or otherwise) the aforesaid six vacancies were requisitioned to the Selection Board. The Principal and the Manager of the institution, who were present before the Court, made a specific statement that both of them are not in a position to produce any document qua the notification of the vacancies. In these circumstances the Court held that the Committee of Management cannot be permitted to obstruct the appointment of empaneled candidates. The Court has further recorded that the Manager of the institution is present in the Court and has no objection in joining of the aforesaid selected candidates. Accordingly, the writ petition filed by the management of the institution has been dismissed while that filed by Aparna Singh has been allowed.

Challenging the judgment and order passed by the Single Judge, the management has approached this Court by means of the present special appeals.

Counsel for the appellants submits that the Selection Board is under an obligation to advertise and select candidates for an institution only in terms of the requisition made. It cannot overreach the requisition and cannot recommend candidates contrary to the requisitions made for the vacancies nor can it violate the provisions of The Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as U.P. Act No. 4 of 1994). On the aforesaid legal plea the judgment and order of the Single Judge, which according to the appellant violates requisition made as also the provisions of U.P. Act No. 4 of 1994, is being challenged.

On behalf of the respondents the judgment and order of the Hon'ble Single Judge is being supported with reference to the stand taken by the Manager qua appointment being offered in terms of the recommendation of the Selection Board and it is stated that the appellant cannot be permitted wriggle out of the stand earlier taken before the Single Judge.

Counsel for the parties agree before this Court that the special appeal may be decided at the admission stage itself without calling for any further affidavits.

On 19th September, 2007 this Court required the learned Standing Counsel to summon the records from the office of the District Inspector of Schools, Auraiya regarding the requisition of the vacancies in question. Sri A.K. Yadav counsel for the Selection Board was also required to produce the original records, which may be available with the Board on the basis whereof the vacancies of the institution are said to have been advertised and select panel prepared.

Today, when the matter was taken up for hearing, the Court made a specific query to the counsel for appellant namely the Manager of the institution, the learned Standing Counsel, who had summoned the records from the office of the District Inspector of Schools as well as from Sri A.K. Yadav counsel for the Selection Board to supply whatever documents in original are available, qua requisition of the vacancies in question, with reference to the provisions of Act, 1982 and Rules framed thereunder so that this Court may examine as to whether the vacancies were requisitioned in accordance with law and select panels have been prepared in terms of the requisition so made or not.

Learned Standing Counsel with reference to the records, which have been made available by the office of the District Inspector of Schools, Auraiya categorically stated that absolutely no documents are available, qua requisition of the vacancies in question in the office of the District Inspector of Schools.

Sri A.K. Yadav Advocate on behalf of the Selection Board, however, produced a letter, said to have been written by the District Inspector of Schools Etawah/Auraiya addressed to the Secretary of the Selection Board, bearing No. 7500/2004-05 dated 20.10.2004, which reads as follows:

"egksn;]

mi;qZDr fo"k;d vkids i=kad @ek0f'k0p0cks0@704&895@2003&04 fnukad 24-04-2003 }kjk Jh Hkkuqizrki flag] Lukrd osrudze lkekftd fo"k; ds in ij p;u fd;k x;k] ftUgsa bl dk;kZy; ds i=kad @v/;k-@2769%73@2003-04 fnukad 16-6-2003 }kjk izcU/kd Jh nsgkrh b0dk0 usfoyxat] vNYnk dks dk;ZHkkj xzg.k gsrq funsZ'k fn;s x;s A izcU/kd us vius i= fnukad 24-09-2003 }kjk voxr djk;k fd Jh Hkkuq izrki flag] lkekftd fo"k;] dk p;fur vH;FkhZ vkt rd fo|ky; esa mifLFkr ugha gqvk] ysfdu Jh Hkkuq izrki yxkrkj dk;kZy; esa izkFkZuk i= izLrqr djrs jgs fd izcU/kd mUgsa dk;ZHkkj xzg.k ugha djk jgs gSa A iqu% bl dk;kZy; ds i=kad @v/;k-@5767&70 fnukad 5-9-2003 }kjk izcU/kd] dks dk;ZHkkj xzg.k gsrq funsZf'kr fd;k x;k A dk;ZHkkj xzg.k u djus ij izkf/kd`r fu;a=d dk uksfVl fn;k x;k izcU/kd us vius i= fnukad 9-10-2004 }kjk voxr djk;k gS fd fo|ky; esa lkekftd fo"k; ds v/;kid i;kZIr ek=k esa dk;Zjr gSa A?? Nk;kizfr layXu gS?? lekftd fo"k; ds LFkku ij dyk] vaxzth] x`g foKku] foKku@xf.kr] tho foKku] O;k;ke f'k{kd ds v/;kid dh vfr vko';drk gSA

iz/kkukpk;Z dh vk[;kuqlkj bl dk;kZy; ds i= fnukad 15-10-2004 }kjk vf/k;kpu vkidh lsok esa izLrqr fd;s tk pqds gSa A d`i;k oLrqfLFkfr ls voxr gksus dh d`ik djsa A

Hkonh;

vkse izdk'k

ftyk fo|ky; fujh{kd]

bVkok@vkSjS;k A"

It is contended that this letter itself was taken as a requisition and therefore all the six vacancies mentioned in the letter were treated to be within general category and accordingly advertised. He, however, admits that no requisition either referred to in the said letter or otherwise is available in the office of the Selection Board.

On behalf of the Committee of Management a letter dated 09th October, 2004, said to have been received by some clerk in the office of the District Inspector of Schools signed by the Principal of the institution, has been produced, which reads as follows:

"egksn;]

mi;qZDr fo"k;d i= ds lEcU/k esa fouez fuosnu gS fd Jh /khjt flag }kjk mPp U;k;ky; esa ;ksftr voekuuk ;kfpdk la0 2112@2001 ds rkjrE; esa eaMyh; la;qDr f'k{kk funs'kd ds funsZ'k o izcU/k lfefr ds izLrko ds rgr Jh /khjt flag dk izf'kf{kr Lukrd osru dze esa foKku&xf.kr ds fjDr in ij lek;kstu fd;k x;k Fkk A vkids mi;qZDr i= ds funsZ'kkuqlkj mi;qZDr in lfgr v|ru izf'k0Lukrd osrudze ds lHkh vf/k;kpu izf"kr fd;s tk jgs gSa A

d`i;k Lohdkj djds vko';d dk;Zokgh djus dk d"V djsa A

Hkonh;

iz/kkukpk;Z

Jh nsgkrh b.Vj dkyst

usfoyxat] vNYnk&bVkok

layXud& 1- vf/k;kpu izi= pkj izfr;ksa esa A"

Learned counsel for the appellant Committee of Management further made a categorical statement before this Court that absolutely no copy of the requisition referred to in the aforesaid letter or otherwise in respect of the vacancies in question is available on the records of the institution.

From the stand so taken by the respective parties it is now an admitted position that neither the Committee of Management, the office of the District Inspector of Schools nor the office of the Selection Board have any records worth consideration, which could reflect upon the date and the nature of the vacancies, which were caused in the institution, the exact date on which they were requisitioned and under which category. In these facts the Court is not in a position to adjudicate as to whether the requisitions qua these 6 vacancies were in fact ever made or not, or if the posts were requisitioned, whether the relevant documents in that respect are being concealed from the Court by the parties interested or not. The documents qua requisition are statutorily prescribed and loss of documents as suggested by the counsel for the Committee, Standing Counsel and the Selection Board cannot be so lightly accepted specifically when there is no other document on record which can disclose the particulars of the posts, which were available in the institution specifically with reference to reservation to be applied.

The appellant Committee submits that out of six vacancies which were available at the relevant time in L.T. Grade, 4 were within the open category and two for scheduled caste. The Selection Board on the other hand submits that the all the six vacancies were within the general category and accordingly advertised and selections made. The District Inspector of Schools is a mere spectator, and on his behalf Standing Counsel submits that in absence of any document being available in his office qua the requisition he can neither support the case of appellants nor can he defend the selections made by the Selection Board. The only answer given is that the recommendation made by the Selection Board must be given effect to.

In this factual background, the Court may examine the scheme of the statutory provisions which regulate requisition, selection and appointment of candidates for appointment in recognized High Schools and Intermediate Colleges, which have been so flagrantly violated by the aforesaid three persons, creating a situation which has made mockery of the entire statutory provisions, which regulate the process of selections.

The Act, 1982 was enforced with an aim and object to streamline the process of selection of teachers in recognized and aided Intermediate institutions in the background that earlier the Committee of Managements, which had the right to select and appoint the teachers and Principals of such recognized institutions, were not performing their duties truthfully and in accordance with the statutory provisions. The Act, 1982 and the Rules framed there under were framed for a wholesome object of providing free and fair selections to the post of teachers and Principal of recognized High Schools and Intermediate Colleges, more so as the liability of payment of salary to teachers and Principal of the aided recognized institutions was upon the State Government, which in turn necessarily reflected upon the State exchequer.

The Legislature, therefore, laid down a detail procedure for ensuring that the process of selection was fair, just and held with all promptness by an independent body like the Selection Board so that qualified teachers within the respective categories are made available to the institutions so that the interest of education, which is the backbone of every civilized society, is not jeopardized in any manner.

Section 10 of the Act, 1982 lays down the procedure for notification of the vacancies by the institution in a prescribed statutory manner within the specific time frame, after due intimation to the District Inspector of Schools, who in turn has not only to verify the correctness of the facts recorded in the requisitions but has also a statutory duty to act on his own in case requisitions are not received within time. This Section 10 itself, for the purposes of application of reservation qua the post of L.T. Grade Teachers of recognized High Schools and Intermediate Colleges, incorporates the provisions of the U.P. Act No. 4 of 1994. For ready reference Section 10 of the Act, 1982 is quoted here under:

"10. Procedure of selection by direct recruitment.-(1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the Institution, also the number of vacancies to be reserved for the candidates belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.

(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed:

Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1)."

It will be seen that under Section 10 requisitions are to be forwarded in the manner prescribed. The manner for requisition and procedure for direct recruitment under Rule 11 of U.P. Secondary Education Services Selection Board Rules, 1998. Rule 11 reads as follows:

"Rule 11. Determination and notification of vacancies.- (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector, in the Board in the manner hereinafter provided.

(2)(a) The statement of vacancies for each category of post to the filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix 'A' by the Management to the Inspector by July 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade, and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by the Inspector to the Board by July 31, with a copy thereof to the Joint Director.:

Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment:

Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30, 1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20, 1998 to the Inspector and the Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July 25, 1998.

(b)...............

(3) If, after the vacancies have been notified under sub-rule (2), any vacancy in the post of a teacher occurs, the management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send it to the Board.

(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in sub-rule(2) or fails to notify them in accordance with the said sub-rule,, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-rule. The vacancies notified to the Board under this sub-rule shall be deemed to be notified by the Management of such institution."

Rule 13 provides for intimation of the names of selected candidates to the institution by the office of the District Inspector of Schools and further contemplates that management shall issue necessary order for appointment in proforma given in Appendix-'E' by the registered post as well as the details for joining of the petitioner accordingly.

From the aforesaid it is apparently clear that not only time limit is fixed for notification of the vacancies caused in the academic year but also in respect of the anticipated vacancies. A further obligation is caused upon the management to disclose complete particulars qua the categories to which the vacancy caused belongs namely scheduled castes/scheduled tribes and other backward classes. This requisition in the prescribed proforma has to be forwarded by the Committee of Management to the District Inspector of Schools of the district concerned, who in turn is obliged to verify the correctness of the facts stated therein and thereafter forward a consolidated statement of vacancies available group-wise and categories-wise to Selection Board as well as to Joint Director of Education for further necessary action. The duty upon the District Inspector of Schools is in three fold (a) he must ensure that the requisition is received in his office within the time and complete in all respect, (b) the facts stated by the management are true and correct and (c) to prepare a consolidated list of vacancies and forward the records with his statement to Selection Board and Joint Director of Education.

In case requisition is not submitted by the Committee of Management within the time, a power has been conferred upon the District Inspector of Schools to forward necessary information of existing vacancies in an institution with complete detail as required under Appendix-A along with consolidated list. The Selection Board in turn has to act upon the requisition so received only for the purpose of making the advertisement. Reference Rule 12, which is quoted below:

"12. Procedure for direct recruitment.-(1) The Board shall, in respect of the vacancies to be filed by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes and other reserved categories as applicable to Government service from time to time, in at least two daily newspapers, having wide circulation in the State and call for the applications for being considered for selection in the pro forma published in the advertisement. For the post of Principal of an Intermediate College or the Headmaster of a High School, the name and place of the institution shall also be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.

(2) .............

(3) ..........

(4) ............

(5) ............

(6) ...........

(7) ...........

(8) ...........

(9) At the time of interview of candidates, for the post of teachers in lecturers and trained graduates grade,, the Board shall, after showing the list of the institutions which have notified the vacancy to it, require the candidates to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.

(10) The Board shall after preparing the panel in accordance with sub-rule (8), allocate the institutions to the selected candidates in respect of the posts of teachers in lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub-rule(9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutions and there remains no vacancy in them, the Board may allocate any institution to him as it may deem fit.

(11) The Board shall forward the panel prepared under sub-rule (8) along with the name of the institutions allocated to selected candidates in accordance with sub-rule(10) to the Inspector with a copy thereof to the Joint Director and also notify them on its notice board."

This Court may record that until and unless there is a requisition in prescribed profoma giving complete particular of the vacancies as required under the statutory act and rules, the Selection Board cannot advertise any vacancy in respect of the institution concerned nor it can prepare or notify any select panel. The starting point for any action being taken by the Selection Board, for the purpose of initiating the process of selection i. e. advertisement, is the receipt of a requisition complete in all respect from the institution to be forwarded through the office of District Inspector of Schools with complete particulars as required under Rule 11. The requirement of such requisition is further highlighted from the fact that after the written examination is over and selected candidates are invited for interview, a list of institutions, where the vacancies are available, has to be shown to the candidates for exercise of their choice. Reference Rule 12(9) and 12(10) of Rules, 1998 quoted above.

In absence of a valid requisition the Selection Board cannot decide as to which category the vacancy in question belongs and therefore no advertisement can be published for the post nor any select panel can be notified for the institution concerned.

In the opinion of the Court no presumptions qua reservation applicable to a particular vacancy is contemplated by law, specifically when Section 10 of Act, 1982 itself provides for application of the reservation Act No. 4 of 1994. In absence of proper knowledge of the category to which the particular vacancy belongs, there can be no selection and further no empanelment of selected candidates. Accordingly, the recommendation of the Selection Board in respect of a post, the category whereof is not informed, is illegal and any document prepared by the Selection Board for suggesting the appointment, in absence of requisition being received, is an illegal exercise of preparation of document by the Selection Board for justifying the selections.

In the aforesaid legal background this Court holds that in absence of any requisition being available either in the office of the Manager/ Principal of the institution, District Inspector of Schools of the district concerned and the Selection Commission, there can be no valid selection on the post of teacher in the aided and recognized institution. The conclusion so recorded follows from Section 16 of the Act, 1982, relevant portion of which reads as follows:

"Section 16. Appointment to be made only on the recommendation of the Board.- (1) Notwithstanding anything to the contrary contained in the Intermediate Education Act, 1921 or the regulations made thereunder but subject to the provisions of Section 12, 18, 21-B, 21-C, 21-D, 33, 33-A, 33-B, 33-C, 33-D, 33-E and 33-F, every appointment of a teacher, shall on or after the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001 be made by the management only on the recommendation of the Board.

(2) Any appointment made in contravention of the provisions of sub section (1) shall be void."

It is thus statutorily provided that in case any appointment is not made in accordance with the Act, 1982, the same would be nullity. This nullity attached to the appointments can be due to the procedure prescribed having not being followed and/or the candidate selected being not possessed of prescribed qualification.

We, therefore, hold that the selection made in respect of the posts in question, which were never requisitioned to the Selection Board, including the advertisement and selection, if any, is a nullity in the eyes of law and select panel so notified cannot be acted upon under law.

The management of the institution in collusion with the authorities has adopted a policy of pick and chose while offering appointments to selected candidates. Absolutely no evidence worth its name was produced before the Court on the basis of which it could be established that the vacancies on the posts of L.T. Grade Teacher Home Science, English, Arts and Physical Training Instructor were for open category while that of L.T. Grade Maths and Biology were for reserved category of scheduled castes. The entire case pleaded in that regard is mere ipse dixit of the management not supported by any relevant fact/records.

Even otherwise Section 3 of Act No. 4 of 1994 provides for reservation to the extent of 27% in favour of other backward class category. It is admitted on record that not even a single teacher in L.T. Grade belonging to the said other backward class category has been appointed in the institution. The reasons for the same could not be explained by the counsel for the management nor any explanation could be furnished as to how three general category candidates have been appointed without having regard to the quota provided for other backward class category under the Act.

What follows, should this Court permit the selected candidates to suffer because of illegality committed by the District Inspector of Schools, Committee of Management of the institution and the Selection Board or the candidates, who are not at fault and are being made to suffer because of illegalities committed by the aforesaid three persons, be provided suitable relief.

At the same time the Court has also to see that such illegalities and irregularities in the process of selection by the Selection Board are not repeated any further. It has become necessary for this Court to not only issue direction for enforcing the statutory provisions in letter and spirit but also to see that the officers and persons, who have so flagrantly violated law and are responsible for creating such a situation, are dealt with seriously so that in future such illegalities, which on the face of it make mockery of the statutory rules, are not repeated again and poor selected candidates are not made to litigate and to run to this Court for their appointments.

Reference may be had to Sections 22 and 23 of the Act of 1982 and Section 5 of the Act of 1994 which provide for the penalties for deliberate acts of violation of the statutory provisions applicable, punishment whereof may extend to imprisonment for the term provided. Sections 22 and 23 of Act, 1982 and Section 5 of U.P. Act No. 4 of 1994 are read as follows:

"Section 22. Punishment for appointment of teachers in contravention of the provisions of the Act.-Any person who fails to comply with the recommendations of the Board, or fails to comply with the order or direction of the Director under Section 17, or appoints a teacher in contravention of the provisions of this Act shall, on conviction, be punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand rupees or with both.

Section 23. Punishment for failure to furnish information or wilful obstruction.- If any person-

(a) wilfully withholds or fails to furnish any return or information lawfully required by the Board within the time allowed therefor; or

(b) wilfully obstructs any person from duly carrying out all or any of the provisions of this Act.

Section 5 of Act No. 4 of 1994. (1) Any appointing authority or officer or employee entrusted with the responsibility under sub-section (1) of section 4 who wilfully acts in a manner intended to contravene or defeat the purposes of this Act shall, on conviction, be punishable with imprisonment which may extend to three months or with fine which may extend to one thousand rupees or with both.

(2) No court shall take cognizance of an offence under this section except with the previous sanction of the State Government or an officer authorised in this behalf by the State Government by an order.

(3) An offence punishable under sub-section (1) shall be tried summarily by a Metropolitan Magistrate or a Judicial Magistrate of the first class and the provisions of sub-section (1) of section 262, section 263, section 264 and section 265 of the Code of Criminal Procedure, 1973 shall mutatis mutandis apply."

In view of the aforesaid, we dispose of these special appeals by issuing following directions:

(1) The teachers selected by the Selection Board but could not be appointed shall be paid a sum of Rs. 10,000/- (ten thousand) each by the Selection Board, District Inspector of Schools at the relevant time and the management of the institution. This amount shall be proportionately divided amongst these three persons. The payment shall be made through account payee cheque within one month from the date of the order.

(2) The case of these selected teachers for empanelment in an institution, where the vacancy was duly requisitioned and advertised and still lying vacant in terms of Advertisement No. 1 of 2005, shall be reconsidered within their respective category by the Selection Board within one month from the date of production of this order and they shall be suitably empaneled for the concerned institutions.

(3) The office of the District Inspector of Schools through out the State as well as Selection Board shall ensure strict compliance of the statutory rules for the purposes of ensuring that (a) requisition in prescribed proforma, as per Appendix-A, is forwarded by the recognized institutions within the time specified under Rule for each academic year (b) the requisition, after being recorded truthful in the record of the District Inspector of Schools, shall be transmitted to the office of the Selection Board and Joint Director of Education along with consolidated list strictly in accordance with the Rules.

(4) The Selection Board shall maintain requisite records in respect of the requisitions received. The vacancies shall be worked out in accordance with the requisition so received and advertised accordingly. The select panel shall also be notified in terms of the requisitioned vacancies within their respective categories.

(5) In no case the Selection Board shall advertise or make selection for any post of teacher, which has not been requisitioned in the prescribed proforma.

(6) Since we have come to a conclusion that there has been deliberate violation of the statutory provisions of the Act, 1982 as well as those of the Act, 1994 qua appointment offered on the recommendation of the Selection Board, for these acts the management of the institution, the District Inspector of Schools and the officers of the Selection Board are equally responsible. Therefore we find ourself justified in directing the Secretary, Secondary Education to lodge a first information report in respect of the violation of the provisions of the Acts, noticed herein above, against all these persons in the concerned police station within three weeks from the date a certified copy of this order is received by him. The investigation shall be carried out by the police with all promptness in the matter without any leniency.

The judgment and order of the learned Single Judge is accordingly set aside. The appeals are disposed of subject to the observations made above.

05.10.2007

Pkb/1225-07


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.