D.K.Seth, J. - (1.) The refusal of approval of appointment of the petitioner, made against a short term vacancy, has since been challenged in this writ petition. The grounds of refusal are three fold. The first ground is that the vacancy was notified only at the notice board and it was not published in a widely circulated newspaper. The second ground was that the appointment was made against a vacancy meant for reserved quota and the third ground was that there were only two applications.
(2.) Mr. V. K. Singh, learned counsel for the petitioner contends that the first ground cannot be sustained since the notice was also published in 'Sanmarg' which has wide circulation which is apparent from Annexure-8. The said 'Sanmarg' has been accepted as a widely circulated newspaper by order dated 24th June, 1996 passed by the Sahayak Suchna Nirdeshak contained in Annexure-8 to the writ petition. Therefore, according to him, the first ground cannot be sustained. He then contends that by reason of the decision in the case of Krishna Nand Dwivedi v. District Inspector of Schools, Ghazipur, (1994) 1 UPLBEC 461, declaring the provision of recruitment only through advertisement in the notice board as ultra vires, appointments made prior to the said judgment are saved by reason of the declaration contained in paragraph 25 of the said decision. Therefore, even if there is an infraction in the matter of publication, the same could not invalidate the appointment. So far as the decision in the case of Radha Raizada and others v. Committee of Management, Vidyawati Darbari Girls Inter College and others, 1994 (3) UPLBEC 1551, restating the provision and saving it from vires and observed that it has to be published in two widely circulated newspapers one in Hindi and other in English. It has been held to be inapplicable in cases where such appointments are approved or deemed to have been approved before the decision in the case of Radha Raizada (supra). Therefore, according to him, publication in one newspaper, as in the present case, would be saved as has been held in the case of Ashika Prasad Shukla v. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722 (DB). He then contends that if there is proper advertisement whether there were only two applicants or more is immaterial. It is publication for advertisement which we are concerned not the number of the response to such advertisement. Therefore, the third ground, according to him, cannot be sustained. He then contends that since the appointment was against a short term vacancy, provision of reservation quota cannot be applied as has been held in the case of Chatur Singh and another v. Regional Deputy Director of Education. Agra, Writ Petition No. 34097 of 1996, decided by this Court, on 3rd December, 1996 since been followed in the case of Smt. Pratima Chauhan and another v. Regional Deputy Director of Education and others, 1991 (1) LBESR 953 (All), Therefore, the impugned order cannot be sustained and is liable to be quashed since the petitioner's appointment shall be deemed to have been approved by reason of the provision of clause (iv) of paragraph 2 (3) of the U. P. Secondary Education Services Commission (Removal of Difficulties) Second Order). 1981. On these grounds, he prays that the writ petition be allowed.
(3.) Mr. K. R. Singh, learned standing counsel on the other hand contends that after the decision in the case of Radha Raizada (supra), all cases where approval has been granted if there is any infraction in the matter of advertisement in that event, the question cannot be covered by the decision in the case of Ashika Prasad Shukla (supra). According to him, after the decision in the case of Radha Raizada, all appointments made in violation of the principle laid down therein cannot be accepted unless it falls within the scope and ambit of the decision in the case of Ashika Prasad Shukla (supra). In the present case, there having been no approval or deemed approval in view of the various infraction the ratio laid down in Ashika Prasad Shukla (supra) cannot be attracted. According to him, there has been gross infraction, the appointment made thereby appears to be non-est. If such appointment has no existence in the eye of law, then there cannot be any question of attracting the ratio decided in the case of Ashika Prasad Shukla (supra). He then contends that there were only two applicants itself shows that the advertisement was not properly published. Thus, it becomes a matter of suspicion in which the Court should not come in aid of the petitioner. He then contends that it has to be borne in mind that even such ad hoc appointment may entitle a candidate to be considered either under Section 33B or under Section 33C of the U. P. Secondary Education Services and Selection Board Act, 1982. Having regard to this question of regularisation, the impact of reservation has to be examined. In case the quota is made inapplicable in respect of short-term vacancy which is normally made by the Committee of Management, there would be serious consequence by filling up such vacancies without adhering to the reservation quota and thereby bringing a complete disorder in the law relating to reservation and disbalance in the filling up of the posts maintaining the balance of reservation having regard to the question of regularisation at a later point of time. Therefore, the decision in the case of Chatur Singh (supra) requires reconsideration in the matter of observation as to whether reservation quota has to be adhered to in the matter of short-term vacancy or not. According to him, in the said decision this aspect of the question has not been taken into consideration. Therefore, the said ratio decided in the case of Chatur Singh (supra) cannot be attracted in the present facts and circumstances of the case in view of the argument advanced by him having regard to the question of regularisation. On these grounds, he prays that the writ petition be dismissed.;