- (1.) Heard Sri Umesh Naraya Sharma, senior counsel assisted by Sri Chandan Sharma, learned counsel for the petitioner and Sri R.K.Ojha senior advocate assisted by Sri Ashish Kumar Ojha, learned counsel appearing for respondent No.8, Sri A.K.Yadav, learned counsel appearing for respondent No.2 as well as learned Standing Counsel appearing for respondents No.1,3,4,5 and 6.
(2.) By means of this writ petition, the petitioner has come to this Court challenging the order of the Joint Director, Secondary Education dated 8.9.2015 by which the authorized controller has been appointed on the institution on account of non-compliance of the order of the Education Authorities directing joining of respondent no.8 Anu Tomar in the Institution. It is to be noted that Anu Tomar is a duly selected candidate by the Board pursuant to an advertisement No.2 of 2004 published on 8.12.2014. She was sent to the institution of the petitioner as Lecturer (Music) but the institution did not allow her to join and one of the ground was that the vacancy of lecturer in Music has arisen under the reserved category and Anu Tomar not being a candidate of reserved category is not entitled to hold the post reserved for OBC. Another objection was raised by the institution in question that she has been allotted the institution of the petitioner in pursuance of an advertisement in 2004 whereas the vacancy occurred in the institution in 2006 upon retirement of a permanent teacher in lecturer grade in subject Music on 30.6.2006. It is stated that the requisition was sent on 6.1.2006, that is, about 5 months prior to the occurrence of the vacancy. The DIOS has forwarded the said requisition to the Board on 10.1.2006 and , therefore, it is submitted that the post of lecturer (Music) in the institution was never advertised and , therefore, no appointment could be made by the Board because of non-advertisement of vacancy. The Education Authorities, however, passed an order directing single operation of the account by the order dated 1.12.2006. On 17.4.2014 the order of single operation was recalled and it was further directed that the institution allowed Anu Tomar to join the post and on 9.10.2014 another order was passed asking the institution to show cause as to why the authorized controller be not appointed under section 6(2) of the Payment of Salary Act, 1971 upon non-compliance of the order of the Education authorities to allow Anu Tomar to join the institution. The petitioner submitted a detailed reply on 22.11.2014 specifically stating therein that the vacancy itself arose in 2006 and the advertisement is of 2004 and , therefore, the vacancy in the petitioner's institution was not advertised pursuant to the advertisement issued on 8.12.2004. Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Satish Kumar Vs. State of U.P.& others, 2006 7 AWC 7570 , para 35 of which are quoted herein below: "For the reasons and, the conclusions drawn hereinabove, our answer to Question No.1 is : An unadvertised vacancy cannot be filled up from amongst the candidate who has been selected in any previous selections and to that extent we declare that the pronouncement of the learned Single Judge in the case of Savita Gupta v.State of U.P.& others, 2004 3 UPLBEC 2739 , does not lay down the law correctly and is hereby overruled. and to Question No.2 is: The U.P.Secondary Education Services Selection Board constituted under the U.P.Act No.5 of the 1982 cannot, with the aid of the Government order dated 12.3.2001, order any adjustment in respect of a vacancy, which has been intimated and notified but not advertised."
(3.) Sri R.K.Ojha assisted by Sri Ashish Kumar Ojha representing respondent No.8 refutes the claim of the petitioner stating that undisputably there is a vacancy in the institution of the lecturer (Music) and the institution has also sent requisition for filling up the said vacancy. It is further submitted that the vacancy was duly advertised and pursuant to the said advertisement, the petitioner applied and was also offered joining and since the petitioner's institution was mentioned in the option, the respondent No.8 applied for the petitioner's institution and she has been allotted the institution and , therefore, the committee of management resisting the joining of respondent no.8 in the institution is against law and impermissible and , therefore, the authorities were justified in appointing the authorized controller upon the committee of management not allowing respondent no.8 to join the institution.;