- (1.) B.S.Chauhan, Arun Tandon-This special appeal is directed against the judgment and order of the learned single Judge dated 4.9.2008 passed in Writ Petition No. 1665 of 1998, Bhagwan Singh Sisodia v. State of U. P. and others.
(2.) THE facts and circumstances giving rise to this special appeal are that a vacancy to fill up the post of Principal in D. N. College and A. K. School, Tirwa, Kannauj, an institution aided and recognised under the provisions of the U. P. Intermediate Education Act, 1921 and 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 the rules framed thereunder, i.e., U. P. Secondary Education Service Selection Board Rules, 1998 (hereinafter called the 'Rules') are fully applicable in the said institution, was notified. THE vacancy requisitioned was advertised by the U. P. Secondary Education Services Commission Allahabad (hereinafter called the 'Commission') vide advertisement dated 1/95-96. After completion of the selection proceedings, a select panel containing names of three candidates was notified in the institution on 3.8.1996. One Mr. Mohd. Naim was placed at serial No. 1 of the said select panel. He was offered appointment and he joined on 30.11.1996. Shri Mohd. Naim continued to be in the institution till 30.6.1997 when he attained the age of superannuation and retired. As a consequence thereto, vacancy was again caused on the post of Principal of the Institution. THE Committee of Management of the institution, in these circumstances, requested the Commission as to whether the person empanelled at Serial No. 2, namely, Shri Chandresh Nath Singh Baghel, could be offered appointment on the post of Principal on the strength of his name being at serial No. 2 in the select panel. THE commission vide its letter dated 7.4.1997 informed the District Inspector of Schools that such appointments could be offered to the appellant who was at serial No. 2 of the said panel. THE District Inspector of Schools communicated the decision to the Committee of Management, who, in turn, passed a resolution dated 12.6.1997 offering appointment to the respondent-appellant on the post of Principal of the institution. Appellant claims to be working on the post of Principal since then. Shri Bhagwan Singh Sisodia, who was working in the institution and claim to be the seniormost Lecturer and entitled for appointment on officiating basis on the post of Principal till the regular appointments were made, filed writ petition before this Court being Writ Petition No. 1665 of 1998 whereby he questioned the appointment of the present appellant as regular Principal of the institution. After parties have exchanged their affidavits, the learned single Judge, by means of judgment and order dated 4.9.1998, allowed the writ petition and has held that the appointment of the present appellant subsequent to the retirement of Mohd. Naim on the strength of the select panel prepared earlier is illegal inasmuch as such select panel lost its life after the candidate empanelled at serial No. 1 Mohd. Naim joined the institution as Principal and could work for a period of seven months before his retirement. THE judgment and order of the learned single Judge is being questioned with reference to the Division Bench judgment of the High Court in the case of Kishori Raman Shiksha Samiti, Mathura v. Regional Inspectress of Girls Schools, 1994 (2) UPLBEC 1320 : 1994 (1) AWC 586. Shri G. K. Singh, learned counsel for the appellant points but that the Division Bench of this Court has held that if the candidate empanelled at serial No. 1 of the select panel after joining against the vacancy advertised resigns/leaves the post or expires within a valid period of the select panel, which is one year, the candidate empanelled at serial No. 2 was legally not entitled for appointment against the said vacancy and this judgment of the Division Bench has not been appreciated in its true spirit by the learned single Judge while holding that the facts of the case were distinguishable vis-a-vis the case of the petitioner-respondent. Shri Ashok Khare, learned senior counsel appearing on behalf of the respondents submits that the judgment and order in the case of Kishori Raman (supra) was delivered in the peculiar facts and circumstances of the case where the candidate expired hardly after five days of his joining, therefore, in the aforesaid factual circumstances, the Division Bench of this Court held that the person empanelled at serial No. 2 could be appointed as the select panel was still subsisting. He pointed out that it is settled law that once a selected candidate empanelled at serial No. 1 joins with reference to the only advertised vacancy, the select panel exhausts itself and the same cannot be used as a source for appointment against a vacancy which may be subsequently caused due to retirement/resignation etc. of the said appointee. He submits that the Hon'ble Supreme Court as well as this Court in series of judgments have repeatedly held that the select panel cannot be used as a perennial source for appointment and that the vacancy which has caused after 11 months of the joining and work of the person who was empanelled at serial No. 1 necessarily creates a new vacancy which is to be advertised in accordance with the rules applicable. Any direction contrary to the above would result in an unadvertised vacancy being filled up from the earlier select panel which would result in depriving the candidates who may have become eligible in between for being considered for the same post as Principal. Thus, it would be violative of Article 14 of the Constitution of India, therefore, the judgment and order of the learned single Judge warrants no interference.
(3.) WE have considered the rival submissions made by learned counsel for the parties and perused the record. The issues for consideration before this Court in the present special appeal are as follows : (a) Whether the select panel notified under the provisions of the Act exhausts itself with the appointment of the candidate empanelled at serial No. 1. (b) Whether the candidate empanelled at serial No. 2 of the said panel can be offered appointment in case the person at serial No. 1 after joining, retires/resigns or expires within the valid period of the select panel, which under the Rules is one year. (c) Whether select panel in respect of an earlier vacancy can be used for filling up of the subsequent vacancy because of death, resignation or retirement of the earlier incumbent or such vacancy is required to be advertised afresh so as to make the process of selection in conformity with Articles 14 and 16 of the Constitution of India. ;