S. Rafat Alam and V. C. Misra, JJ. - (1.) THIS intra court appeal, under the Rules of the Court, is preferred against the judgment of the Hon'ble single Judge dated 9.5.2007 allowing Civil Misc. Writ Petition No. 41961 of 2006, Rakesh Bhardwarj v. State of U. P. and others, with certain observations and directions.
(2.) WE have heard Shri Ashok Khare, learned senior counsel assisted by Shri Arun Kumar Tiwari, learned counsel appearing for the appellant ; Shri P. K. Jain, learned counsel appearing for the petitioner-respondent No. 6 and the learned standing counsel appearing for the State-respondents. The short facts, as appear from the pleadings of the parties, briefly stated are that Shri Gangadeen Gauri Shanker College, Kanpur Cantt, Kanpur (hereinafter referred to as 'the institution') is the recognized institution and is also getting grant-in-aid from the State Government hence governed by the provisions of the U. P. Intermediate Education Act, 1921 (in short 'Act of 1921'), the Regulations framed thereunder and the provisions of the U. P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 (hereinafter referred to as 'the Salaries Act of 1971'). The writ petitioner, who is respondent No. 5 in this appeal, was Assistant Teacher of L.T. grade in the institution. However, he was given ad hoc promotion as Lecturer in Chemistry against the vacancy caused on account of promotion of the incumbent Shri Hari Narayan Vajpayee as officiating Principal. As per the provisions contained under Chapter III, Regulation 21 of the Act of 1921, he was to continue in service till he attained the age of 60 years, i.e., 8.12.2003 and further he was entitled to get extension of service up to the end of sessions, i.e., 30.6.2004. However, before he could retire the State Government took a policy decision to enhance the age of superannuation from 60 to 62 years. Consequently, the provisions contained under Chapter III, Regulation 21 of the Act of 1921 was accordingly amended as a result of which the age of superannuation of Shri Hari Narayan Vajpayee was extended up to 8.12.2005 and by virtue of sessions benefit up to 30.6.2006. If further appears that the management of the institution treating the age of superannuation of Shri Hari Narayan Vajpayee as 8.12.2003 and session's benefit up to 30.6.2004 notified the vacancy of the lecturer of the institution to the U. P. Secondary Education Services Selection Board, Allahabad (hereinafter referred to as 'the Selection Board') and the District Inspector of Schools, Kanpur. The vacancy was accordingly advertised on 8.12.2004 in Daily Dainik Jagran. However, the District Inspector of Schools, Kanpur, vide its letter dated 21.4.2005 informed the Secretary of the Selection Board with reference to the letter dated 25.2.2003 of the Committee of Management that the post of lecturer in Chemistry of the institution was notified due to inadvertence, as it was not substantively vacant. If further appears that the Committee of Management of the institution sent fresh requisition by notifying the vacancy of lecturer in Chemistry on 25.11.2005 to the Selection Board, which was to be effected on 30.6.2006, on the retirement of Shri Hari Narayan Vajpayee. It further appears that despite above communication made by the District Inspector of Schools the Selection Board proceeded with the selection process on the basis of the advertisement dated 8.12.2004 and prepared the panel on 8.12.2005 wherein the name of appellant was recommended for the post of lecturer in Chemistry in the institution, as Scheduled Caste category candidate. It further appears that the Selection Board (respondent No. 2) through letter dated 30.6.2006 (Annexure-4 to the writ petition) informed the District Inspector of Schools, Kanpur to keep the matter of joining of the appellant in the institution in question in abeyance until further order and communicate the present vacancy of the institution. Copy of this letter was also sent to the management. In compliance to the above intimation of the Selection Board the District Inspector of Schools, Kanpur also vide letter dated 30.7.2006 (Annexure-5 to the writ petition) directed the Management and the principal of the institution not to accept the joining of the appellant until further order. It further appears that the District Inspector of Schools informed the Secretary of the Selection Board that the post of lecturer in Chemistry of the institution actually became vacant after the retirement of Shri Hari Narayan Vajpayee on 30.6.2006. However, it further appears that, in the meanwhile, the Management issued the letter of appointment to the appellant on 28.6.2006. Being aggrieved, respondent No. 6 filed the writ petition' for quashing the same on the ground inter alia that the vacancy in question was liable to be filled in by way of promotion only and not through direct recruitment and further that in respect of the advertisement of the vacancy in question made on 8.12.2004 no recommendation could have been made by the Selection Board, as the alleged vacancy, in fact, was not available hence, the entire selection process for the selection and appointment of the appellant was void and without jurisdiction. The Hon'ble single Judge having heard the learned counsel for the parties dismissed the writ petition by a detailed and reasoned order. Hence, this appeal. Learned counsel appearing for the appellant vehemently contended that the appellant having been selected and appointed against the vacancy which was duly notified to the Commission and admittedly on the date when she was appointed the vacancy existed in the institution and therefore, there was no illegality or irregularity in her appointment on the post in question and the Hon'ble single Judge has erred in law in quashing the same, without considering this aspect of the matter. The argument proceeds that under the U. P. Secondary Education Services Selection Board Act and Rules framed thereunder, requisition can be sent before occurrence of the vacancy, which was sought to be filled up by direct recruitment quota. The Committee of Management accordingly sent requisition for filling up the vacancy, which was duly advertised and the petitioner-respondent had not applied against it for being selected, therefore, none of his legal rights has been infringed and he is not an aggrieved person pursuant to the advertisement No. 2 of 2004 by which the vacancy was declared initially and therefore, had no locus to file the writ petition. Besides that at the relevant time he was not eligible for consideration, as he did not fall within the zone of eligibility. Thus, petitioner-respondent No. 6 had no valid claim against the said post. Secondly, he failed to demonstrate that the post in question was to be filled in by way of promotion and, therefore, the Hon'ble single Judge erred in allowing the writ petition. Similar stand has been taken by the learned standing counsel, who appeared for the State-respondents as well as the learned counsel, who appeared for the Committee of Management.
(3.) ON the other hand, learned counsel appearing for respondent No. 6 vehemently opposed the appeal and contended that the very requisition sent by the management to the Selection Board to recommend the name of the appellant to the post in question was without jurisdiction since at the relevant time the vacancy not being available the entire selection process undertaken by the Board was illegal and the appointment made pursuant thereto is void. It is further contended that if in a particular year of recruitment promotion quota is not full, steps first have to be taken to fill up the vacancy by giving promotion and only when no eligible candidates are available, steps for appointment by direct recruitment is to be taken. It is submitted that in the case in hand, no objective consideration was made as to why the vacancy in question is not first filled up as per quota by promotion and has wrongly been reserved for Scheduled Caste category ignoring the roaster point. It is, therefore, submitted that in the absence of any factual or legal error in the judgment no interference in the appeal is warranted. Having heard learned counsel for the parties and looking to the facts of the case and the contentions made on both sides, we are of the view that though the controversy involved in this appeal and the writ petition is very simple, yet to appreciate and adjudicate the same, it would be necessary to ponder over and adjudicate the following aspects of the matter, which necessarily and incidentally arise in this matter : (1) Whether the requisition sent by the management and the District Inspector of Schools to the Commission was valid conferring jurisdiction on the Commission to make selection on the post in question? (2) Whether selection made by the Commission against the vacancy which occurred much after in point of time to the actual occurrence of vacancy could validly confer a right upon the selected candidate to claim appointment and whether such selection and appointment can be said to be only irregular or it would be void ab initio? ;