- (1.) B. S. Chauhan, J. This reference has arisen out of the order dated 25th August, 2005, wherein a learned Single Judge of this Court has referred the following questions to be answered by this Bench, as nominated by Hon'ble the Chief Justice : (1) Whether an unadvertised vacancy can be filled up from amongst the candidates, who have been selected in the earlier selection ? (2) Whether under U. P. Act No. 5 of 1982 or under U. P. Secondary Education Service Selection Board Rules, 1998, there is any authority vested with the U. P. Secondary Education Service Selection Board to direct for adjustment of candidates who have been selected but could not join for one reason or the other, to any other institution, vacancy whereof has been notified but not, advertised ?
(2.) THE aforesaid questions relate to filling up of an unadvertised vacancy of a Lecturer in an Intermediate College, the selection whereof is governed by the provisions of the Uttar Pradesh Secondary Education (Services Selection Board) Act, 1982 (U. P. Act No. 5 of 1982) (hereinafter called the 'act') and U. P. Secondary Education Service Selection Board Rules, 1998 (hereinafter called the 'rules' ). The occasion for this reference has arisen on account of the decision of a learned Single Judge in the case of Savita Gupta v. State of U. P. & Ors. , 2004 (2) LBESR 421 (All) : 2004 (2) UPLBEC 2739, wherein it has been held that if the vacancy has been requisitioned and the Management has notified it to the Board under the provisions of the aforesaid Act, then in that event, the said vacancy can be offered to a selected candidate even if the vacancy was not advertised by the Board. This decision was cited on behalf of the petitioner where after the learned Single Judge, in the instant case, for the reasons stated in the referring order, has after respectfully disagreeing with the said judgment, framed the questions aforesaid for being answered by this Bench. The learned Single Judge in the case of Savita Gupta (supra) was considering the case of a teacher, who was claiming promotion on the post and whose claim had been returned by the District Inspector of Schools after the said vacancy had been offered to the respondent therein, who was a candidate selected by the Board through direct recruitment and whose adjustment was sought to be made in terms of the Government Order dated 12th March, 2001. The learned Single Judge held that once a vacancy was notified to the Board for selection by way of direct recruitment, then it was not open to the Committee to consider the case of any promotion against the said post and once the vacancy had been notified, it was the Board alone which could have filled up the said vacancy. The Court further held that this would advance the cause and purpose of selection by way of direct recruitment in accordance with the object of the said Act. It was further held that the provisions of the Act and the Rules did not prohibit or create any hindrance for making such adjustments and, therefore, it cannot be said that the recommendation made against an unadvertised vacancy would, in any way, violate the provisions of the Act and the Rules. The learned Single Judge distinguished the ratio of the decision of the Hon'ble Apex Court in the case of Kamlesh Kumar Sharma v. Yogesh Kumar Gupta, 1998 (2) LBESR 166 (SC) : AIR 1998 SC 1021, on the ground that was a case pertaining to selections under the provisions of U. P. Higher Education Services Commission Act, 1980 and the Rules framed there under, which made a provision for a definite life of the select list. The learned Single Judge went on to distinguish the said decision that in the Rules under consideration and in the case under U. P. Secondary Education Service Commission Act, there was no such provision, providing the life of the list, therefore, the Board did not commit any error in making adjustment against the said post. The Court held that in the absence of any such restriction under the Act and the Rules under consideration, it cannot be said that the selection of the candidate and his or her adjustment was invalid. In effect, the conclusion drawn was that such an interpretation serves the object and purpose of the Act and Rules, referred to hereinabove. The action of the Board in making the recommendation against an unadvertised vacancy was upheld.
(3.) HEARD Shri Pradeep Verma, learned Counsel for the petitioner and Shri Amit Kumar Singh for respondent No. 7 and Shri C. K. Rai, learned Standing Counsel for the State. The gist of the argument of the learned Counsel for the petitioner is that once a vacancy stood notified to the Board, though might have occurred subsequent to the advertisement issued by the Board, the Board has a right to fill up the said vacancy recommending the name of the selected candidate from the panel prepared in pursuance of the advertisement issued prior to the date of occurrence of the vacancy, as it does not adversely affect any person and further guarantees avoidance of any kind of nepotism and corruption, therefore, both the questions should be answered in affirmative.;