- (1.) BY the Court.-This appeal is by the senior most teacher in the lecturers grade of Saraswati Bal Mandir, Uchchatar Madhyamik Vldyalaya, Jaunpur claiming his entitlement to function as the ad hoc Principal of the Institution which is duly recognized and governed by the provisions of the U.P. Intermediate Education Act, 1921.
(2.) THE appellant being unsuccessful before the learned single Judge has preferred this appeal also questioning the validity of the order dated 16.9.2010 whereby the District Inspector of Schools has called upon the Manager of the Institution to issue a letter of appointment to the respondent No. 6 treating him to have been validly selected against the post under the provisions of the U.P. Secondary Education [Services Selection Boards] Act, 1982 read with the U.P. Secondary Education Services Selection Board, Rules, 1998. The challenge is on the ground that the respondent No. 6 had been empanelled at serial No. 2 in the select list in relation to a vacancy that occurred on 30th June, 2000 and was advertised under Advertisement No. 1 of the year 2002. It is urged that one Dr. Vijay Kumar Singh was placed at serial No. 1 in the panel and upon being selected he had been appointed and who continued on the post till 1st July, 2010 when he resigned. The contention therefore raised is that there was no occasion to have recommended the name of the respondent No. 6 who was at serial No. 2 in the panel as the panel had already exhausted and no semblance of any right existed so as to revive the said panel and direct the appointment of the respondent No. 6. on the post in question. The learned single Judge rejected the said contention and held that the selected candidate at serial No. 1 namely Dr. Vijay Kumar Singh held the post by misrepresenting his qualification of experience. His selection was ultimately found to be void being ineligible for want of essential qualification and was accordingly cancelled on 9th July, 2010, hence the respondent No. 6 deserved to be appointed. Had the correct facts relating to the deficiency in qualification been taken notice of, the Board would never have selected Dr. Vijay Kumar Singh. Consequently the respondent No. 6 who was next in the panel was illegally deprived of a valid appointment, hence, the order of the District Inspector of Schools directing the management to issue a letter of appointment did not suffer from any infirmity. The learned single Judge further held that the appointment of the selected candidate Dr. Vijay Kumar Singh at serial No. 1 was void as he did not possess the essential qualification of minimum experience of four years as desired under the rules, and therefore, it was non-est and the candidate at serial No. 2 namely the respondent No. 6 was lawfully entitled for being appointed.
(3.) THE appellant has assailed the order on the same grounds as taken before the learned single Judge. Sri R.K. Ojha learned counsel for the appellant submits that the conclusion drawn by the learned single Judge is erroneous and he relies on certain decisions to substantiate the same. THE contention raised is that the entire action was highly belated, inasmuch as, the respondent No. 6 had allegedly made a complaint on 14.7.2005 and then filed a writ petition after 4 years in the year 2009 for a decision on such a complaint. It is urged that neither there was any proof of the complaint being made nor was it entertainable after a lapse of three years of the selections nor was any writ petition entertainable for consideration of his request after a lapse of seven years of the selections. It is contended that any direction obtained by the respondent No. 6 to decide his representation would not be a sufficient explanation for the laches. It is urged that if the Board had cancelled the appointment of the selected candidate Dr. Vijay Kumar Singh then a vacancy had arisen, and such a substantive vacancy has to be readvertised and filled up de-novo under the provisions of the 1982 Act read with the 1998 Rules. THE respondent No. 6 cannot be inserted on the said fresh vacancy which has arisen due to the departure of Dr. Vijay Kumar Singh. Sri Ojha further submits that Dr. Vijay Kumar Singh had resigned on 1st July, 2010 as he had already been selected on 7th May, 2010 as a Lecturer in a Degree College where he has already been appointed. The resignation of Dr. Vijay Kumar Singh had been accepted by the Committee of Management on 4th July, 2010 and thus the vacancy had arisen even prior to the order of cancellation of his candidature by the Board. Consequently, the learned single Judge has committed an error by misconstruing these facts against the law laid down by this Court and having wrongly applied the same, the judgment deserves to be set aside. The contention therefore is that the empanelment of the respondent No. 6 did not continue endlessly beyond a reasonable time, and therefore, to allow him to join against the selections of the year 2002-03 was an illegal act on the part of the authorities which deserves to be set aside. Sri Ojha accordingly prays for quashing of the directions issued by the Board and the consequential order passed by the District Inspector of Schools dated 16.9.2010.;