Hon'ble V.K.Shukla - (1.) AJAI Kumar Dixit, the petitioner has approached this Court questioning the validity of the selection of Sudhakar Saini, respondent No. 6 as Assistant Teacher L.T. Grade (Physical Education) at S.P.P. Inter College, Pandri Kala, District Unnao pursuant to recommendation made by the U.P. Secondary Education Services Selection Board, Allahabad.
(2.) IN the district of Unnao, there is an institution known as S.P.P INter College Pandari Kala, District Unnao. The provisions of U.P. INtermediate Education Act, 1921, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971 are fully applicable to the said institution. IN the institution concern, petitioner claims that post of Assistant Teacher L.T. Grade (Physical Education) fell vacant on 30.6.1999 due to retirement of Ugra Nath Awasthi. Petitioner submits that said post was meant for general category and requisition was also sent by the respondent Nos. 3 and 4 in general category. Petitioner has stated that after vacancy has been notified and looking into the urgency of the matter, the Managing Committee of the institution proceeded to under take selection process by making the advertisement in two daily news paper i.e. "Swantra Bharat and "Aaj" dated 16.10.2005. Petitioner has stated that he applied pursuant thereto and thereafter he was selected and appointment letter was issued in his favour on 1.12.2005 and he gave his joining on 5.12.2005 and claims that since 5.12.2005 he has been functioning as Assistant Teacher L.T. Grade. Petitioner has stated that he was functioning and salary was not being ensured to him, in this regard he preferred Civil Misc. Writ Petition No. 3708(S/S) 2006 wherein detailed interim order was passed in his favour on 1.5.2006, which is extracted below : "Notice on behalf of opposite party Nos. 1 to 4 has been accepted by the learned Standing Counsel, who prays and is granted four weeks time to file counter affidavit. Two weeks thereafter is granted to the counsel for the petitioner to file rejoinder affidavit. List immediately after expiry of the aforesaid period Issue notice to opposite party No. 5. Learned counsel for the petitioner submits that the vacancy on the post of Assistant Teacher, L.T. Grade (P.T.) fell vacant on 30.6.1999 due to retirement of permanent teacher working on the post namely Sri Ugra Nath Awathi. Requisition was sent to the D.I.O.S. by means of letters on 26..12.2004 and 7.7.2005 for making regular appointment and when the D.I.O.S. failed to provide any regularly selected candidates from the Board, under compelling circumstances the Committee of Management proceeded to make advertisement for making short term appointment on the post in question. Various candidates, including the petitioner, applied in pursuance to the advertisement and ultimately the petitioner was selected by the Committee of Management and thereafter he was issued with an appointment letter on 1.12.2005. Thereafter, the petitioner joined on the post on 5.12.2005 and since then he is continuously discharging his duties. The petitioner's counsel also submits that the power to make appointment on short term basis till regularly selected candidate is available , is vested with the Committee of Management, as has been recognised by this Court in Rakesh Chandra Mishra's Case (2004) LCD page 1604. The D.I.O.S. instead of giving approval has put certain queries and has given a specific opinion by means of letter dated 28.2.2006 that the power to make appointment on short term basis is not vested with the Committee of Management. He also submits that this observation of the D./I.O./S. is per-se bad in law and against the law laid down by this Hon'ble Court. IN view of the aforesaid fact, I direct the D.I.O.S. concerned to make payment for current salary to the petitioner every months. However, the appointment of the petitioner shall come to an end as soon as the regularly selected candidates comes and joins on the post. Petitioner has stated that thereafter, U.P. Secondary Education Services Selection Board, Allahabad made Advertisement No. 1 of 2009 and advertised the post held by him for OBC category and selected respondent No. 6 while the requisition was sent for general category and as such selection of respondent No. 6 on the post of the OBC category on the said post candidate is bad and unsustainable in the eyes of law. Petitioner rushed to this Court and this Court on 16.6.2010 passed following interim order, which is being extracted below: "Heard learned counsel for the petitioner and Sri A.K. Yadav, learned counsel appearing for the U.P. Madhyamik education Service Selection Board. Issue notice to opp. party No. 6. The opp. parties may file counter affidavit within six weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List this case in the 2nd week of September, 2010. The grievance of the petitioner is that he is working on the post of Assistant Teacher, L.T. Grade in S.P.P. Inter College, Pandri Kala, District Unnao. Since December, 2005 and he is having the requisite qualification and experience of teaching the students. Learned Counsel for the selection board has resisted the motion and has raised objection. In view of the above, till the next date of listing, petitioner shall be allowed to continue on the post held by him in the institution.
(3.) COUNTER affidavit has been filed on behalf of the U.P. Secondary Education Service Selection Board, Allahabad and alongwith counter affidavit, photo copy of the requisition dated 20.10.2005 forwarded by the District Inspector of Schools has been appended wherein post in question has been shown to be reserved for OBC category candidate. The letter number and date has also been mentioned bearing Letter No. 4917 dated 20.10.2005. It has been stated that as per requisition sent before the Secretary, U.P. Secondary Education Service Selection Board, Allahabad, vacancy in question was advertised and result after selection has been made and after the said selection, petitioner has no right or lien to hold the post. It has also been stated that vacancy in question was notified for OBC category and not for general category as stated by the petitioner; therefore, contention raised by the petitioner is incorrect. Counter affidavit has been filed on behalf of the regularly selected candidate and therein it has been stated that against the vacancy advertised being Advertisement No. 1 of 2009, Sudhakar Saini had applied with Roll No. 031401257 he belongs to the member of OBC category and had undertaken written examination and allowed to appear in the interview by respondent No. 1 vide letter dated 21.1.2010 and after declaration of the result, in all eventuality he is entitled to be offered appointment. It has been specifically stated that for selection of T.G.T grade teacher number of vacancies of each category are shown and the name of the institution is not shown, as such averment that general category post was advertised by the U.P. Secondary Education Services Selection Board, Allahabad other backward classes is incorrect. It has been further mentioned that selection made strictly as per provision of U.P. Act No. 5 of 1982 and rules framed there under.;