- (1.) With the consent of the parties, this writ petition is being disposed of finally. The short controversy involved in this writ petition is that as to whether the State has power to invoke Rule 13(5) of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 'Rules 1998') to appoint a person by transferring him on a post to which he is not eligible to hold under the Rules. In order to appreciate this controversy following facts are required to be noticed. It appears that the respondent No. 5 was appointed as a Lecturer in Civics. In pursuance of the advertisement notice issued for the post of Lecturer in Civics, the respondent No. 5 applied for the said post and was selected in an Institution other than the Institution namely Arya Kanya Girls Inter College, Govind Nagar. It so appears that due to the non-availability of the post the respondent No. 5 could not be adjusted as a result of which an order was passed on 17.5.2003 adjusting her in the present institution as a Lecturer in Civics. The adjustment order of the petitioner was challenged by one Smt. Saroj Awasthi in Writ Petition No. 32326 of 2003. The principal plea taken by Smt. Saroj Awasthi in the writ petition was that the respondent No. 5 has been appointed against the post of Lecturer in Civics which was never advertised nor was notified to the Commission by the Management. Relying upon a Division Bench Judgment of this Court in Satish Kumar v. State of U.P. and others, 2006 4 ESC 2786, the learned Single Judge quashed the order dated 17.5.2003 and consequently, the order of adjustment of the respondent No. 5 in the said Institution was set aside. The Management contended before the Court that they be given the option to adjust the respondent No. 5 against any different post. No direction was issued by the Court in this behalf leaving the matter to be decided by the Management. After the order of adjustment was set aside the Regional Director issued direction to the Managing Committee to adjust the petitioner against any vacant post. In pursuance to that direction, the Management issued an order on 6.5.2008 adjusting the respondent No. 5 against the post of Lecturer in Hind with effect from 20.11.2007. This order is subject-matter of challenge in this writ petition.
(2.) The case of the petitioner is that petitioner has been appointed as an Assistant Teacher in L.T. Grade which fell vacant due to death of one Kumar Lajwanti on 1.12.1990 and her appointment was accorded approval, vide order dated 29.8.1991 and subsequently her services have been approved by the Deputy Director of Education, vide order dated 21.10.1994 under Section 33B of the Commission Act. She was promoted to the post of Lecture in Education on 4.11.2003. Her claim is that on account of adjustment of the respondent No. 5 as a Lecturer in Hindi in the Institution, she will rank junior to respondent No. 5 which will crime in the way of her promotion to the higher post. This is why the petitioner has questioned the order of adjustment of the respondent No. 5 in the Institution against the post of Lecturer in Hindi.
(3.) On the other hand the stand of the respondent is that she was appointed as a lecturer in Civics and by invoking Rule 13(5) of 1998 Rules, she was adjusted in the Institution against the post of Lecturer in Hind, vide order dated 17.5.2003. However, this adjustment order dated 17.5.2003 was set aside by this Court in the Writ Petition No. 32326 of 2003. The other stand of the respondent No. 5 is that for purposes of withdrawal of the salary, she was allowed to work against the post of Lecturer in Hindi. It is further contended that the petitioner has no cause to come before this Court as seniority is to be determined from the date of first appointment and there is no dispute that the respondent No. 5 is senior to the petitioner as her selection/appointment has been made prior to the appointment of the petitioner as a Lecturer. The other ground taken by the respondent is that petitioner has an alternative remedy of filing appeal against this order which she has not been availed. It is further stated that the petitioner has been adjusted against the post of Lecturer in Civics with effect from 1.7.2008 on account of the vacancy which has occurred in the Institution.;