Ajai Kumar Dixit, the petitioner has approached this court questioning the validity of the selection of Sudhakar Saini, respondent no.6 as Assistant Teacher L.T. Grade (Physical Education) at S.P.P. Inter College, Pandri Kala, District Unnao pursuant to recommendation made by the U.P. Secondary Education Services Selection Board, Allahabad.
In the district of Unnao, there is an institution known as S.P.P Inter College Pandari Kala, District Unnao. The provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971 are fully applicable to the said institution. In the institution concern, petitioner claims that post of Assistant Teacher L.T. Grade (Physical Education) fell vacant on 30.6.1999 due to retirement of Ugra Nath Awasthi. Petitioner submits that said post was meant for general category and requisition was also sent by the respondent nos. 3 and 4 in general category. Petitioner has stated that after vacancy has been notified and looking into the urgency of the matter, the Managing Committee of the institution proceeded to under take selection process by making the advertisement in two daily news paper i.e. "Swantra Bharat and "Aaj" dated 16.10.2005. Petitioner has stated that he applied pursuant thereto and thereafter he was selected and appointment letter was issued in his favour on 1.12.2005 and he gave his joining on 5.12.2005 and claims that since 5.12.2005 he has been functioning as Assistant Teacher L.T. Grade. Petitioner has stated that he was functioning and salary was not being ensured to him, in this regard he preferred Civil Misc. Writ Petition No. 3708(S/S) 2006 wherein detailed interim order was passed in his favour on 1.5.2006, which is extracted below:-
"Notice on behalf of opposite party nos. 1 to 4 has been accepted by the learned Standing Counsel, who prays and is granted four weeks time to file counter affidavit. Two weeks thereafter is granted to the counsel for the petitioner to file rejoinder affidavit. List immediately after expiry of the aforesaid period Issue notice to opposite party no. 5.
Learned counsel for the petitioner submits that the vacancy on the post of Assistant Teacher, L.T. Grade (P.T.) fell vacant on 30.6.1999 due to retirement of permanent teacher working on the post namely Sri Ugra Nath Awathi. Requisition was sent to the D.I.O.S. by means of letters on 26..12.2004 and 7.7.2005 for making regular appointment and when the D.I.O.S. failed to provide any regularly selected candidates from the Board, under compelling circumstances the Committee of Management proceeded to make advertisement for making short term appointment on the post in question. Various candidates, including the petitioner, applied in pursuance to the advertisement and ultimately the petitioner was selected by the Committee of Management and thereafter he was issued with an appointment letter on 1.12.2005. Thereafter, the petitioner joined on the post on 5.12.2005 and since then he is continuously discharging his duties. The petitioner's counsel also submits that the power to make appointment on short term basis till regularly selected candidate is available , is vested with the Committee of Management, as has been recognised by this court in Rakesh Chandra Mishra's Case reported in (2004) LCD page 1604. The D.I.O.S. instead of giving approval has put certain queries and has given a specific opinion by means of letter dated 28.2.2006 that the power to make appointment on short term basis is not vested with the Committee of Management. He also submits that this observation of the D./I.O./S. is per-se bad in law and against the law laid down by this Hon'ble Court.
In view of the aforesaid fact, I direct the D.I.O.S. concerned to make payment for current salary to the petitioner every months. However, the appointment of the petitioner shall come to an end as soon as the regularly selected candidates comes and joins on the post.
Petitioner has stated that thereafter, U.P. Secondary Education Services Selection Board, Allahabad made Advertisement No.1 of 2009 and advertised the post held by him for OBC category and selected respondent no.6 while the requisition was sent for general category and as such selection of respondent no.6 on the post of the OBC category on the said post candidate is bad and unsustainable in the eyes of law.
Petitioner rushed to this court and this court on 16.6.2010 passed following interim order, which is being extracted below:-
"Heard learned counsel for the petitioner and Sri A.K. Yadav, learned counsel appearing for the U.P. Madhyamik education Service Selection Board.
Issue notice to opp. party no. 6.
The opp. parties may file counter affidavit within six weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List this case in the 2nd week of September, 2010.
The grievance of the petitioner is that he is working on the post of Assistant Teacher, L.T. Grade in S.P.P. Inter College, Pandri Kala, District Unnao. Since December, 2005 and he is having the requisite qualification and experience of teaching the students.
Learned Counsel for the selection board has resisted the motion and has raised objection.
In view of the above, till the next date of listing, petitioner shall be allowed to continue on the post held by him in the institution.
Counter affidavit has been filed on behalf of the U.P. Secondary Education Service Selection Board, Allahabad and along with counter affidavit, photo copy of the requisition dated 20.10.2005 forwarded by the District Inspector of Schools has been appended wherein post in question has been shown to be reserved for OBC category candidate. The letter number and date has also been mentioned bearing Letter No. 4917 dated 20.10.2005. It has been stated that as per requisition sent before the Secretary, U.P. Secondary Education Service Selection Board, Allahabad, vacancy in question was advertised and result after selection has been made and after the said selection, petitioner has no right or lien to hold the post. It has also been stated that vacancy in question was notified for OBC category and not for general category as stated by the petitioner; therefore, contention raised by the petitioner is incorrect.
Counter affidavit has been filed on behalf of the regularly selected candidate and therein it has been stated that against the vacancy advertised being Advertisement No.1 of 2009, Sudhakar Saini had applied with Roll No. 031401257 he belongs to the member of OBC category and had undertaken written examination and allowed to appear in the interview by respondent no.1 vide letter dated 21.1.2010 and after declaration of the result, in all eventuality he is entitled to be offered appointment. It has been specifically stated that for selection of T.G.T grade teacher number of vacancies of each category are shown and the name of the institution is not shown, as such averment that general category post was advertised by the U.P. Secondary Education Services Selection Board, Allahabad other backward classes is incorrect. It has been further mentioned that selection made strictly as per provision of U.P. Act No. 5 of 1982 and rules framed there under.
Rejoinder affidavit has been filed and therein entire emphasis is on the fact that vacancy in question was sent by the District Inspector of Schools by the Requisition bearing letter No. 4557/2004-2005, dated 15.12.2004 and for this purpose reliance has been placed on communication of the District Inspector of Schools dated 24.8.2006 sanctioning payment of salary to the petitioner in compliance of the interim order passed by this court on 1.5.2006. Petitioner has tried to contend that said requisition is in reference to the Requisition dated 12.2.1999 which is already on record of the writ petition and in this regard much insistence has been made that vacancy was notified for vacancy of general category.
After pleadings mentioned above have been exchanged, present writ petition has been taken for final hearing/disposal with the consent of the parties.
Sri. Ashok Khare, Senior Advocate, learned counsel for the petitioner contended with vehemence that in the present case vacancy has been notified for making appointment from amongst General Category candidate and quite illegally candidate from OBC category candidate has been sent and as such selection made from amongst OBC category is liable to be quashed in the institution concern. Sri Khare Advocate further proceeded to mention that in the institution concern reservation has to be applied treating subject as a "Unit" and as in the institution concern there is only one post of T.G.T. (Physical) subject, then against the said single post, policy of reservation cannot be pressed as it would tantamount to hundred per cent reservation, as such in all eventuality selection made is liable to be quashed.
Countering the said submission, Sri A.K. Yadav, learned Standing Counsel for the Board on the other hand contended that argument advanced are totally misconceived as here vacancy in question was notified for being filled from amongst OBC category and thereafter proceedings have been undertaken by the Selection Board by advertising and making selection and thereafter rightful recommendation has been made and under the provisions of U.P. Act No. 5 of 1982 read with 1998 Rules framed thereunder, by no stretch of imagination "Subject" can be treated as "Unit" for the purposes of U.P. Act No. 4 of 1994 as posts are created grade-wise and at the present moment there are three grade.
(1)Principal grade (2)Lecturers grade (3)L.T. grade and as such arguments advanced are totally misconceived and devoid of substance.
Argument to the similar effect has been advanced by Sri K.K. Chand, learned Standing Counsel and Sri J.L. Patel, Advocate, representing Selected candidate who further contended that in the present case Sudhakar Saini is duly selected candidate, having applied in OBC category on the basis of merit, he has rightly been selected and petitioner has got no right to question the validity of the appointment of the respondent no.6 specifically in this background that petitioner was not at all candidate in selection and specially when in the said selection, vacancies were not at all shown to be advertised institution wise.
After respective arguments have been advanced factual situation on which there is no dispute that vacancy for the post of Assistant Teacher (Physical Education) TGT grade fell vacant on 30.6.1999 due to retirement of Ugra Nath Awasthi, who was General Category candidate. Petitioner claims that said vacancy was notified by the Principal of the institution, in Appendix-A under covering letter dated 10.2.1999 to be reserved for general category candidate and in this background petitioner submits that by no stretch of imagination said post could have been filled up by recommendation of Selection Board in favour of OBC category candidate. This is also accepted position that pursuant to the advertisement No.1 of 2009 issued for making selection and appointment of Assistant Teacher as far as petitioner is concern, at no point of time, he was ever a candidate in the said selection. Documents have been filed by the petitioner to show and substantiate that under letter dated 10.2.1999 vacancy was notified to District Inspector of Schools and same is also fortified from letter of District Inspector of Schools dated 24.8.2006 wherein it was mentioned that vacancy was notified to Selection Board vide letter dated 15.12.2004. Contrary to the said document original document sent by the Management in Appendix "A" and subsequent letter of District Inspector of Schools dated 20.10.2005 addressed to the Secretary of the Selection Board under letter No. 4917, copy of the same has been filed along with counter affidavit and original has also been produced before this court and therein in L.T. Grade total six posts have been shown wherein post of Art teacher has been shown reserved for Scheduled Caste, post of Sanskrit and Physical Education has been shown for OBC category and three posts of English, Math and Home Science have been reserved for general category and total sanctioned post has been shown as 15 out of which 9 posts were already full. Document filed by petitioner as Annexure-2, page 15 of the paper book clearly reflects that details as is required to be furnished under Appendix "A" has not at all been disclosed, as full details have not been given qua total number of posts already filled up by way of direct recruitment and by way of promotion. Thereafter again full details have been furnished by the Manager, wherein each and every information asked for has been furnished. Selection Board on the basis of said requisition available send by means of letter No. 4917 dated 20.10.2005 wherein clear cut details have been given, notifying the said vacancy for OBC category and thereafter, advertisement in question has been made and selections has been made qua respondent no.6, then petitioner legitimately could have no grievance on this score once selected candidate has been sent in the institution concern. Petitioner has not at all given existing reservation status in the institution concern and reason appears to be obvious that had such status been furnished, then position would have been clear as to in what way and manner reservation policy has been adhered to in the institution concern.
Once District Inspector of Schools had notified the said vacancy to Selection Board clearly showing therein that post of assistant teacher L.T. grade of Sanskrit and Physical Education were meant for OBC category, then petitioner who was not at all a candidate in the process of selection, cannot be permitted to challenge the validity of selection of respondent no.6, who has been duly selected by the Selection Board on merit and qua the selections made there is no fault.
Next issue raised is that subject should be treated as "Unit" for applying the provisions of U.P. Act No. 4 of 1984 and as there is single post of assistant teacher L.T. Grade (Physical), sanctioned as such said post could not have been reserved as has been done in the present case, and for this purpose reliance has been placed on the judgment of Hon'ble Apex Court in the case of Dr. Chakradhar Paswan Versus Buihar and others reported in SCC. 1988 (2) SLR page no. 119 and the judgment of this Court in the case of Dr. Vishwajeet Singh Versus State of U.P. reported in E.S.C. page 1387 of 2009(2) .
In order to appreciate respective arguments, which has been advanced, as to whether subject is to be treated as Unit, the provision of U.P. Secondary Education Service Board Act, 1982 is being looked into.
In the State of U.P. matters relating to appointment of teachers and Principal/Head Master were governed as per provisions as contained under U.P. Intermediate Education Act. In the year 1982, U.P. Secondary Education Services Commission and Selection Board Act,1982 (U.P. Act No. 5 of 1982) was enacted, whereby the authority to make selection and appointment was taken away from the Committee of Management and a centralised body was constituted to make selection and appointment, and it was mandated to the Management to appoint the teaching staff only on recommendation of the Commission. Section 2 deals with definition clause, defining Board, Institution other Backward Classes, teacher respectively. Sections 9 of the said Act gave authority to U.P. Secondary Education Service Selection Board to prepare guidelines on the matter regarding direct recruitment and promotion, whereas Section 10 provides for procedure of selection by Notification/Advertisement qua posts specified under the schedule, as per the procedure prescribed. Under Section 35 of the said Act, the State government was given authority to make Rules. For convenient perusal, Sections 2(2),(e),(hh),(k) 9, 10 and 35 of Act No.5 of 1982 are being quoted below:
"Definitions:- In this Act.
(a) 'Board' means the Uttar Pradesh Secondary Education Services Selection Board Established under section 3;
(b) "Chairman' means the Chairman of the Board and includes any other person performing in the absence of the Chairman, for the time being, the functions of the Chairman;
(c)( ***)
(d) 'Director' means the Director of Education, Uttar Pradesh and includes an Additional Director of eduction, Uttar Pradesh.
(d-1) 'Inspector' means the District Inspector of Schools and in relation to an institution for girls, the Regional Inspectress of Girls Schools;
(e) 'Institutions', means an Intermediate College or a Higher Secondary school or a High school recognised under the Intermediate Education Act, 1921, and includes institution maintained, by a local authority, but does not include an institution maintained by the State Government;
(f) Management' in relation to an institution means the committee of management or person or authority vested with the power to manage and conduct the affairs of that institution;
(g) 'Members' means a member of the Board and includes its Chairman;
(h) (***) (hh) other backward classes of citizens' means the backward classes of citizens specified in Schedule 1 of the Uttar Pradesh Publis Services (Reservation for Scheduled Castes, scheduled Tribes and other Backward Classes ) act, 1994;
(i) ' regulation' means any regulation made under section 34;
(j) (***)
(k) 'Teacher' means a person employed for imparting instruction in an institution and includes a Principal or a Headmaster.
"9. Powers and duties of the Board.-- The Board shall have the following powers and duties, namely:
10. Procedure of selection by direct recruitment.- (1) For the purpose of making appointment of a teacher, by direct recruitment, the management shall determine the number of vacancies existing or likely to fall vacant during the year of recruitment and in the case of a post other than the post of Head of the institution,also the number of vacancies to be reserved for the candidates belong to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in accordance with the Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994, and notify the vacancies to the Board in such manner and through such officer or authority as may be prescribed.
(2) The procedure of selection of candidates for direct recruitment to the post of teachers shall be such as may be prescribed.
Provided that the Board shall, with a view to inviting talented persons, give wide publicity in the State to the vacancies notified under sub-section (1).
35. Power to make rules.- The State Government may, by notification, make rules for carrying out the purposes of this Act."
Rule 5 deals with academic qualification,which a candidate is required to possess. Rule 12 of the U.P. Secondary Education Service Selection Board Rules, 1998 deals with the procedure for direct recruitment of teachers, Lecturers and Principals/Head Masters. For sake of convenience, relevant extract of Rules 5,10,11 and 12 of 1998 Rules, dealing with selection of Principal/Head Master/ Lecturer/ L.T. Grade teachers are being quoted below:
"Rule 5. Academic qualification.- A candidate for appointment to a post of teacher must possess qualifications specified in Regulation 1of chapter II of the Regulations made under the Intermediate Education Act, 1921.
Rule 10. Source of recruitment Recruitment to various categorizers of teacher shall be made from the following sources:
Teachers of lecturers grade By direct recruitment
(b) Teachers of lecturer's grade
(i) 50 per cent by direct recruitment
(ii) 50 per cent by promotion from amongst substantively appointed teachers of the trained graduates grade
(c) Teachers of trained graduates grade
(i) 50 per cent by direct recruitment
(ii) 50 per cent by promotion from amongst substantively appointed teachers of Certificate of Teaching Grade Provided that it in any year of recruitment suitable eligible candidates are not available for recruitment by promotion, the posts may be filled in by direct recruitment.
Provided further that if in calculating respective percentages of posts under this rule there comes a fraction then the fraction of the posts to be filled by direct recruitment shall be ignored and the fraction of the posts to be filled by promotion shall be increased to make it one post.
Rule 11: Determination and notification of vacancies (1) For the purposes of direct recruitment to the post of teacher, the Management shall determine the number of vacancies in accordance with sub-section (1) of Section 10 and notify the vacancies through the Inspector , to the Board in the manner hereinafter provided.
2(a) The statement of vacancies for each category of posts to be filled in by direct recruitment including the vacancy that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the pro forma given in Appendix"A" by the Management to the Inspector by July 1`5 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the district subject wise in respect of the vacancies of Lecturer grade and group-wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, along with the copies of statement received from the Management, be sent by th4e Inspector to the Board by July 31 with a copy thereof to the Joint Director.
Provided that if the State Government is satisfied that it is expedient so to do, it may, by order in writing, fix other dates for notification of vacancies to the Board in respect of any particular year of recruitment.
Provided further that in respect of the vacancies existing on the date of the commencement of these rules as well as the vacancies that are likely to arise on June 30,1998, the Management shall, unless some other dates are fixed under the preceding proviso, send the statement of vacancies by July 20,1998 to the Inspector and Inspector shall send the consolidated statement in accordance with this sub-rule to the Board by July, 25, 1998.
Explanation:- For the purposes of this sub-rule the word ''group-wise' in respect to the trained graduates grade means in accordance with the following groups, namely.
(a) Language This group consist of the subject of Hindi, Sanskrit, Urdu, Persian and Arabic
(b) Science This group consists of the subjects of Science and Mathematics.
(C) Art and Craft.
(d) Music
(e)Agriculture
(f)Home Science
(g)Physical Education
(h) General This group consists of the subjects not covered in any of the foregoing groups.
(b) With regard to the post of Principal, or Headmaster, the Management shall also forward the names of two senior most teachers, along with copies of their service records (including character rolls) and such other record or particulars as the Board may require, from time to time.
Explanation:- For the purpose of this sub-rule" senior most 'teacher" means the senior most teacher in the post of the highest grade in the institution, irrespective of total service put in the institution.
(3) If, after the vacancies have been notified under sub-rule (2), any vacancy in the post of teacher occurs, the Management shall, within fifteen days of its occurrence, notify to the Inspector in accordance with the said sub-rule and the Inspector shall within ten days of its receipt by him send if to the Board.
(4) Where, for any year of recruitment, the Management does not notify the vacancies by the date specified in sub-rule (2) or fails to notify them in accordance with the said sub-rule, the Inspector shall on the basis of the record of his office, determine the vacancies in such institution in accordance with sub-section (1) of Section 10 and notify them to the Board in the manner and by the date referred on in the said sub-rule. The vacancies notified to the Board under this sub rule shall be deemed to be notified by the Management of such institution.
"12. Procedure for direct recruitment. - (1) The Board shall, in respect of the vacancies to be filled by direct recruitment, advertise the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens in at least two daily newspapers, having wide circulation in the State, and call for the applicants for being considered for selection in the pro forma published in the advertisement. For the post of Principal of an Intermediate College or the Head Master of a High School, the name and place of the institution shall be mentioned in the advertisement and the candidates shall be required to give the choice of not more than three institutions in order of preference and if he wises to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application.
(2) The Board shall scrutinize the applications and in respect of the post of teacher in lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of one paper of general aptitude test of two hours duration based on the subject. The centers for conducting written examination shall be fixed in the district Head Quarters only and the invigilators shall be paid honourarium at such rate as the Board may like to fix.
(3) The Board shall evaluate the answer sheets through examiner to be appointed by the Board or through Computer and the Examiner shall be paid honourarium at the rate to be fixed by the Board.
(4) The Board shall prepare lists for each category of posts on the basis of quality points specified in Appendix 'B' of Appendix 'C', as the case may be, marks in written examination and marks for experience as follows:
(i) 30 per cent marks on the basis of quality points;
(ii) 40 per cent marks on the basis of the written examination; and (iii) 20 per cent marks for experience more than the required experience in such manner that 4 marks shall be allotted for having doctorate's degree and 2 marks shall be given for each year of such experience with maximum of 16 marks.
Note:- (1) The teaching experience for this purpose shall be counted only for the recognized High School/Intermediate College (s) or Junior High School and such certificate shall actually mention the date of appointment, date of joining and the scale of pay and duly signed by the Principal/Head Master and counter signed by the District Inspector of Schools or Zila Basic Shiksha Adhikari, as the case may be,with full name of the countersigning authority;
(2) Any wrong information submitted in this regard shall make the applicants of such candidates liable to be rejected and for this the candidate himself shall be solely responsible.
(5) The Board shall, in respect to the selection for the post of Headmaster and Principal, allot the marks in the following manner-
(i) 60 per cent marks on the basis of quality points specified in Appendix 'D';
(ii) 20 per cent marks for having experience more than the required experience, 1 mark for each research paper published with a maximum of 4 marks and 2 marks for each year of such experience with a maximum of 16 marks; and
(iii) 10 per cent marks for having doctorate degree.
Note:- For the purposes of calculating experience, the service rendered as Headmaster of Junior High School or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Headmaster and for selection of Principal, the service rendered as Headmaster of a High School or as a Lecturer shall only be counted. The provision of sub-rule (4) of Rule 12 regarding the certificate of experience shall mutatis mutandis apply."
(6) The Board, having regard to the need for securing due representation of the candidates belong to the Scheduled Caste, Scheduled Tribes and other Backward Classes of citizens in respect of the post of teacher in lecturers and trained graduates grade, call for interview such candidates who have secured the maximum marks under sub-clause (4) above/ and for the post of Principals/Head Master, call for interview such candidates who have secured the maximum marks under sub-clause (5) above in such manner that the number of candidates shall not be less than three and nor more than five times of the number of vacancies:
Provided that in respect of the post of Principal or Head Master of an institution the Board shall also in addition call for interview, two senior most teachers of the institution whose names are forwarded by the Management through Inspector under clause (b) of sub-rule (2) of Rule 11.
(7) The Board shall hold interview of the candidates and 10 per cent marks shall be allotted for interview. the marks obtained in the written test and the quality points by the eligible candidates shall not be disclosed to the members of the Interview Board.:
Provided further that in the interview, ten per cent marks shall be divided in the following manner:
(i) 4 per cent marks on the basis of subject/general knowledge; (ii) 3 per cent marks on the basis of personality; and (iii) 3 per cent marks on the basis of ability of expression
(8) The Board then, for each category pf post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under sub-clause (4) or sub -clause (5) above, as the case may be, with the marks obtained in the interview. The panel for the post of Principal or Head Master shall be prepared institution-wise after giving due regard to the preference given by a candidate, if any, for appointment in a particular institution whereas for the posts in the lectures and trained graduates grade, it shall be prepared subject-wise and group-wise respectively. If two or more candidates obtain equal marks,the name of candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality pints are also equal, then the name of candidate who is older in age shall be placed higher In the panel for the post of Principal or Head Master,the number of names shall be three times of the number of vacancy and for the post of teachers in the lecturers and trained graduates grade, it shall be larges (but nor larger than twenty-five per cent) than the number of vacancies.
Explanation.- Fort the purposes of this sub-rule, the word "group-wise; means in accordance with the groups specified in the Explanation to sub-rule (2) of Rule 11.
(9) At the time of interview of candidates, for the teachers in the lecturers and trained graduates grade the Board shall, after showing the list of institutions which have notified the vacancy to it, require the candidate to give, if he so desires, the choice of not more than five such institutions in order of preference, where, if selected, he may wish to be appointed.
(10) The Board shall after preparing the panel in accordance with sub-rule (8), allocate the institutions to the selected candidates in respect of the posts which of teachers in the lecturers and trained graduates grade in such manner that the candidate whose name appears at the top of the panel shall be allocated the institution of his first preference given in accordance with sub rule (9). Where a selected candidate cannot be allocated any of the institutions of his preference on the ground that the candidates placed higher in the panel have already been allocated such institutional and thee remains no vacancy in them, the Bard may allocate any institution to him as it may deem fit.
(11) The Board shall forward the panel prepared under sub-rule 8 along with the name of the institutions allocated to the selected candidates in accordance with sub-rule (10) to the Inspector with a copy thereof to the Joint Director of Education and also notify them on its notice board."
On the parameters of provision quoted above, it is writ apparent that the provision of U.P. Act No. 4 of 1994 has been specifically made applicable in selection to be made by the Selection Board. In the definition clause, section 2 (hh) defines "other backward classes of citizens" as the backward classes of citizens specified in Schedule 1 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, scheduled Tribes and other Backward Classes ) Act, 1994. Under Section 10 of 1982 Act, the Managing Committee of the institution is obliged to determine the vacancy also keeping in view the number of posts to be reserved in accordance with sub-section (1) of Section 10, said vacancy thereafter has to be notified through Inspector to Board in the manner provided. Notification has to be made as is provided under Rule 11 of 1998 Rules and sub-rule 2(a) of Rule 11 of 1998 Rules clearly provides that the statement of vacancies for each category of post to be filled in by direct recruitment including the vacancies that are likely to arise due to retirement on the last day of the year of recruitment, shall be sent in quadruplicate, in the proforma given in Appendix 'A' by the Management to the Inspector by July, 15 of the year of recruitment and the Inspector shall, after verification from the record of his office, prepare consolidated statement of vacancies of the District subject-wise in respect of the vacancies of lecturer grade, and group wise in respect of vacancies of trained graduates grade. The consolidated statement so prepared shall, alongwith the copies of statement received from the Management, be sent by the Inspector to the Board by July, 31 with a copy thereof to the Joint Director. Explanation has also been added to the same defining group wise in respect of the trained graduate's grade. Three groups have been provided for. The first group is of Language comprising subject of Hindi, Sanskrit, Urdu, Persian and Arabic. Second science group consists of the subjects of Science and Mathematics and the last group covers all other subject not covered by the aforementioned language group and science group and same comprises, Art Craft, Music Agriculture, Home Science, Physical Education and other General subject. Rule 12 of 1998 Rules deals with the procedure for direct recruitment qua vacancies to be filled up by direct recruitment providing for advertising the vacancies including those reserved for candidates belonging to Scheduled Castes, Scheduled Tribes, other Backward Classes and other reserved categories as applicable to Government service from time to time, in at least two daily newspapers, having wide circulation in the State and call for the applications for being considered for selection in the pro forma published in the advertisement. For the post of Principal of an Intermediate College or the Headmaster of a High School, the name and place of the institution has to be mentioned in the advertisement and the candidate is required to give the choice of not more than three institutions in order of preference and if he wishes to be considered for any particular institution or institutions and for no other institution, he may mention the fact in his application. The Board shall scrutinize the applications and in respect of the post of teacher in lecturers and trained graduates grade, shall conduct written examination. The written examination shall consist of one paper of general aptitude test of two hours, duration based on the, subject. The centres for conducting written examination shall be fixed in district headquarters only and the invigilator shall be paid honorarium at such rate as the Board may like to fix. Sub- Rule (4) of Rule 12 of 1998 Rules deals with preparation of the list, whereas sub- rule (5) deals with selection for the post of Headmaster and Principals. Sub Rule (6) deals with the Board, having regard to the need for securing due representation of candidates belonging to the Scheduled Castes/Scheduled Tribes and Other Backward Classes of citizens in respect of the post of teacher in lecturers and trained graduates grade, shall call for interview such candidates who have secured the maximum marks under sub-clause (4) above/ and for the post of Principal/Headmaster, shall call for interview such candidates who have secured maximum marks under sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies. The Board thereafter, under sub-clause (8) of 1998 Rules for each category of post, prepare panel of those found most suitable for appointment in order of merit as disclosed by the marks obtained by them after adding the marks obtained under sub-clause(4) or sub-clause (5) above, as the case may, with the marks obtained in the interview. Panel for the post of Principal has to be institution wise whereas for the posts in Lecturer and TGT (Trained Graduate Grade), panel has to be prepared subject wise and group wise respectively. Sub-rule (9) of Rule 12 gives incumbent choice of institution, not more than five, where if selected, he may wish to be appointed. Sub-rule (1) of Rule 12 deals with allotment of institution, after preparation of panel, based on merit status. Sub-rule (11) of Rule 12 deals with further follow up action. selection contemplated is grade wise and it is evidence from Rule 10 of U.P. Secondary Education Service Selection Board, Rules, which clearly provides that recruitment of various category of teacher shall be made in respect of teacher, lecturer grade 50% by direct recruitment and 50% by way of promotion from amongst substantively appointed teacher trained graduate grade and so far as teachers of trained graduates grade is concerned, 100% by direct recruitment except the category of the institutions mentioned i.e. wherein there is attached primary section of teaching staff getting salary, under U.P. Act No. 24 of 1971, 75% posts shall be filled up by direct recruitment and remaining 25% by way of promotion from amongst trained graduate teachers of attached primary section who have completed five years of satisfactory service. Scheme is thus clear and categorical that selection is to be made grade wise and there are only two grades.
(i) Lecturer grade
(ii) Trained graduate grade.
The Managing Committee of the institution is obliged to determine the vacancy keeping in view of the provision as contained under sub section (1) of Section 10 from the sources provided for in Rule 10 of 1998 Rules for filling up vacancy during the year of recruitment having due regard to he number of vacancy regarding candidate belonging to Scheduled Caste and Schedule Tribes and other backward classes of citizen. The notification is to be done as per Appendix-A. Appendix-A in reference of Rule 11(2) and 14(3) of 1998 Rules contains details of number of teacher, number of post, qualification for the post and pay scale of the post, for which selection is to be made i.e. to lecturer or trained graduate grade, total number of sanctioned post, number of post filled by direct recruitment, total number of vacancy determined by the Manager to be filled by direct recruitment/promotion. In item No. 4 of the Appendix-A details have to be given, for reservation for Scheduled Caste and Scheduled Tribes and other backward classes of the citizen. Item No. 5 deals with the name of all eligible candidates for promotion to their qualification and length of service from the date of regular payment under the grade from which promotion is to be made. Thus it is writ apparent from the scheme that for making selection and appointment under U.P. Act No. 5 of 1982 and U.P. Secondary Education Selection Board Rules, 1988, the provision of U.P. Act No. 4 of 1994 even otherwise have been specifically made applicable, and total number of post available in lecturer grade and total number of post available in L.T. Grade are to be considered as 'Unit' for applying the provision of U.P. Act No. 4 of 1994 and not 'subject wise' as has been sought to be suggested.
The judgment in the case of Dr. Chakradhar Paswan Versus Bihar and others reported in SCC. 1988 (2) SLR page no. 119 will not at all be applicable in the present case as here entire T.G.T. grade is to be treated as unit as per the scheme of thing noted above and accordingly provisions of U.P. Act No. 4 of 1994 is to be made applicable and not subject wise as has been sought to be suggested. This judgement of Hon'ble Apex Court has to be read in the context it has been delivered. It is relevant to refer to recent decision of the Apex Court in Balbir Kaur and another Vs. U.P. Secondary Education Services Selection Board, Allahabad and others 2008 (3) UPLBEC 2376. The number of posts of Principal of Secondary institutions were advertised by U.P. Secondary Education Services Selection Board for recruitment. One of the submissions was that the post of Principals in different institutions have to be clubbed together and rule of reservation are to be applied and posts have to be reserved for reserved category candidates . The Apex Court held that post of Principals in different institutions are not required to be clubbed for the purpose of reservation. Following was observed in paragraph 28:
28. Having examined the issue in the light of the 1994 Act, section 10 of the Principal Act and the settled position in law, we are of the view that the stand of the respondents is not well founded. Under section 10 of the Principal Act, the Management is required to intimate the number of vacancies to be filled by way of selection by direct recruitment. While doing so, the Management is also required to intimate the number of vacancies to be reserved for the candidates belonging to Scheduled Castes, Schedule Tribes, and Other Backward Classes of citizens in accordance with the 1994 Act. However, Section 10 expressly excludes the post of the Principal from the purview of the 1994 Act. Thus, from a plain reading of the said provision, the intention of the Legislature is manifestly clear. The Legislature, in its own wisdom did not think it proper to provide for any reservation under the 1994 Act for the post of head of the institution. Indubitably, there is no challenge to the validity of Section 10 of the Principal Act. Moreover the post of the Principal in an educational institution being in a single post cadre, in the light of the clear dictum laid down by this Court, such a post cannot be subjected to reservation. It will result in 100 over cent reservation, which is not permissible in terms of Articles 15 and 16 of the Constitution of India. In PGI Chandigarh's case (supra) a Constitution Bench of this Court, while holding that plurality of posts in a cadre is a sine qual non for a valid reservation, affirmed the view taken in Chakradhar Paswan Vs. State of Bihar and others (supra). In that case, it was held that there cannot be any reservation in a single post cadre and the decisions to the contrary, upholding the reservation in a single post cadre either directly or by device of rotation of roster were not approved. Besides, as noted above, neither the Principal Act, nor the rules made thereunder or the 1994 Act provide for clubbing of all educational institutions in the State of U.P. for the purpose of reservation and therefore, there is no question of clubbing the post of the Principals in all the educational institutions for the purpose of applying the Principal of reservation under the 1994 Act. We are, therefore, in agreement with the High Court that the advertisements impugned in the writ petition were not vitiated for want of provision for reservation. It is also pertinent to note that none of the respondents belong to the reserved category of Scheduled Castes or Schedule Tribes or Other Backward Classes. All of them are from the general category. Therefore, even otherwise they have no locus standi to raise the plea of reservation. "
The judgment in the case of Dr. Vishwajeet Singh Versus State of U.P. reported in E.S.C. page 1387 of 2009(2) is also not at all applicable viz-a-viz provisions of U.P. Act No. 5 of 1982 read with 1998 Rules, inasmuch as in the case of Dr. Vishwajeet Singh (supra) parity has been drawn qua the provisions of U.P. State Universities Act, 1973 wherein subject is treated to be 'Unit' for the purposes of applying the provision of U.P. Act No. 4 of 1994. Dr. Vishwajeet Singh (Supra) has drawn parity qua provisions of U.P. State Universities Act, 1973 and accordingly interpreted the provision as contained under U.P. Higher Education Act and Selection Board Rules framed thereunder and this fact would be fully evident from para no. 45,46,48,49,50,51,52,53, which is being extracted below.
45. The apex Court by its pronouncements in the cases of Dr. Suresh Chandra Verma, Dr. Dina Nath Shukla and State of U.P. Vs. M.C. Chattopadhyaya (supra) has laid down that the posts of Lecturers in a University cannot be clubbed together for the purpose of applying reservation and roster and the reservation and roster in the post of Lecturers have to be applied subject-wise. Thus, each subject of study has been treated to be a unit for applying the rules of reservation. As noticed above, the petitioners have advocated for applying the same principle regarding reservation, which has been accepted in a University, whereas learned Advocate General appearing for the respondents have made two alternative submissions firstly; different posts in different colleges in each subject are to be clubbed together and thereafter reservation has to be applied in the manner as mentioned in the affidavit of Principal Secretary, Higher Education, quoted above and in alternative if a college is treated to be a unit, all the posts of Lecturers in a college have to be clubbed together and reservation has to be applied as is being applied in the Secondary institutions governed by the provisions of U.P. Secondary Education Services Selection Board Act, 1982. For coming to a correct conclusion, it has to be first found out as to whether concept of Faculty, department and subject is also present in Degree colleges or post graduate colleges as it exists in a University.
46. Section 27 of the U.P. State Universities Act, 1973 provides for the Faculties, Section 27(2) provides that each Faculty shall comprise such departments of teaching as may be prescribed. Section 27 also contemplates Board of each Faculty and also Dean of each Faculty. In each department of teaching in the university there shall be a Head of Department to be appointed according to Statute. Section 27(1) (2) (3) and (4) are quoted herein below:
"27. The faculties.- (1) The University shall have such faculties as may be prescribed.
(2) Each faculty shall comprise such departments of teaching as may be prescribed and each department shall have such subjects of study as may be assigned to it by the Ordinance.
(3) There shall be a Board of each Faculty, the constitution (including the term of office of its members) and powers and duties of which shall be such as may be prescribed.
(4) There shall be a Dean of each Faculty who shall be chosen from amongst the Professors by rotation in order of seniority and shall hold office for three years:"
48. There are other provisions under the First Statutes which clearly contemplate different faculties in a college. Chapter XII of the Statutes deals with "Affiliated Colleges". Statute 12.06 contemplate application for affiliation in different faculties including commerce, Education, Law , Science etc. Statute 12.06 also contemplate affiliation in different subjects also. Statute 12.11 is quoted herein below:
"12.11. Every application from an affiliated college for starting courses of instructions for a new degree or in view subjects shall be made so as to reach the Registrar before the 15th August of the year preceding the one in which it is proposed to start such courses."
49. The above provisions thus, clearly indicate affiliation faculty-wise and subject-wise. Like wise Statute contains the provisions of determination of seniority of teachers of the University as well as teachers of the affiliated colleges. Statute 17.02 contemplates maintainance of seniority list in respect of each category of teachers in a University. Statute 17.08 contains contemplation of seniority of teachers in the same department. On the other hand, Statute 17.10 contains rules for determination of seniority of principals and teaches of affiliated colleges. Statute 17.13 contemplates relative seniority of teachers appointed in the same department or in the same subject in a college. Statute 17.13 (1) is quoted below:
"17.13 (1) When two or more persons are appointed as teaches in the same department or in the same subject, their relative seniority shall be determined in order of preference or merit in which their names were recommended by the Selection Committee."
50. Thus, the above provision does contemplate the concept of departments and subjects in affiliated colleges also.
51. Section 31 of the U.P. State Universities Act, 1973 contemplates Selection of the teachers of the University through a Selection Committee. Section 31(4) contemplates different Selection Committees with regard to different Departments. Appointment of Lecturers of Degree Colleges/Post Graduate Colleges is governed by U.P. Higher Education Services Commission Act, 1980. Regulations have been framed under the U.P. Hither Education Services Commission Act namely the U.P. Hither Education Services Commission (Procedure and Conduct of Business) Regulations, 1983, regulation 5 of which contemplates separate "Interview Board". Regulation 5 (1) is quoted below:
"5. Interview Board.- (1) Separate interview Boad shall be constituted for the posts of Principals in post-graduate Colleges, Principals in degree colleges and for the post of other teachers in each subject."
52. Thus, selection is also contemplated subject-wise in regard to teachers of degree colleges/ post graduate colleges. Learned Additional Advocate General has also referred to rules of reservation as applied in the Secondary schools governed by the provisions of U.P. Secondary Education Services Selection Board Act, 1982. He contends that while applying the rules of reservation in different subjects of Lecturers in an intermediate colleges, all subjects are clubbed together and thereafter rules of reservation are applied. As noted, the provisions of U.P. Higher Education Services Commission Act, 1980 and rules and regulations framed thereunder do not refer to 1994 Act in selection of Lecturers of degree/post graduate college but the rules of reservation have been made applicable by virtue of 1994 Act itself. In the intermediate colleges governed by U.P. Act No. 5 of 1982, there are specific statutory provisions which make the rules of reservation applicable. The 1982 Act and 1998 Rules specifically refer to applicability of provisions of 1994 Act and selection and reservation in the intermediate colleges is done in accordance with the procedure prescribed thereunder. Rule 10 of the U.P. Secondary Education Services Selection Board Rules,1998 refers to source of recruitment of "teachers of lecturer's grade" as 50% by direct recruitment and 50% by promotion. The other provisions of 1998 Rules also indicate applicability of reservation in lecturer's grade which means applicability of reservation on all the posts of lecturers together which is referred to as lecturer's grade . Rule 12(6) again specifically refers to applicability of reservation on the post of teachers in lecturer's grade, rule 12 (6) is extracted below:-
"12 (6) The Board, having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes/Schedule Tribes and Other Backward Classes of citizens in respect o the post of teacher in lecturers and trained graduates grade, call for interview such candidates who have secured the maximum marks under sub-clause (4) above/ and for the post of Principal/Head Master, call for interview such candidates who have secured maximum marks under sub-clause (5) above in such manner that the number of candidates shall not be less than three and not more than five times of the number of vacancies:
Provided that in respect of the post of the Principal or Headmaster of an Institution, the Board shall also in addition call for interview two seniormost teachers of the institution whose names are forwarded by the Management through Inspector under Clause (b) of sub-rule (2) of Rule 11. "
53. The use of words "lecturer's grade" in the Rules 1998 is an indication that all posts of lecturers in different subjects in an intermediate college are taken together for applicability of reservation. We, however, hasten to add that in the present case the question of applicability of reservation in posts of lecturers in an intermediate college does not fell for consideration directly and we do not propose to express any final opinion in that regard, the above provisions have been referred to only to highlight that in U.P. Act No. 5 of 1982 and Rules 1998 there are specific reference of applicability of reservation which is not present in 1980 Act and Rules and Regulations framed thereunder, thus the manner of applicability of reservation in an intermediate college is not relevant for applying the same in a degree college/post graduate college affiliated to a university. When the question arises to follow the pattern of applicability of reservation, we have no hesitation that the pattern which is applicable for applying the rules of reservation in the post of Lecturers in a University have to be accepted as compared to those which are applied on the post of Lecturers in intermediate colleges. As noted above, the concept of faculties, departments and subjects, the rules of seniority as noted above in the U.P. State Universities Act, 1973 and the Statutes framed thereunder are applied in some what similar manner regarding the degree college/post graduate colleges which are applied on the teachers of the University.
Qua the University and degree colleges, same principle has been held to be applicable for applying rules of reservation i.e. subject has been treated as Unit, after recording similarity on the front of subject, department and faculties and after recording finding that selection is contemplated subject wise, keeping in view that affiliation is also accorded faculty wise and subject wise. Said principle cannot be pressed vis-a-vis the provision of U.P. Secondary Education Services Selection Board Act, 1982 and the provisions of 1998 Rules, inasmuch as under U.P. State Universities Act, 1973 and in affiliated colleges selection is contemplated subject wise and affiliation is also accorded faculty wise and subject wise as noted above and which has been dealt with in detail in the judgment of Dr. Vishwajeet Singh. The provisions of U.P. Higher Education Act 1980 and the Rules framed thereunder do not refer to UP Act No. 4 of 1994 and by virtue of the self contained provisions of U.P. Act No. 4 of 1994 said provisions have been made applicable. Under U.P. Act No. V of 1982 and the Rules framed thereunder, which have been noted in detail in the earlier part of judgment, specifically statutory provisions qua reservation has been provided for adopting the provisions of U.P. Act No. 4 of 1994 and selection and appointment is to be done from the sources provided for in Rule 10 of 1998 Rules, and exercise has to be undertaken on the said score while notifying the vacancy and specifically it has to be indicated in the column, as to whether post in question is meant for reserved category candidate or not. Scheme of things are clear qua applicability of reservation, specially Rule 12(6) clearly spells out the mandate by providing that Board shall call for interview, having due regard to the need for securing representation of the candidates belonging to Schedule Caste/Schedule Tribe/ OBC in respect of post of teacher in Lecturer Grade/ Trained Graduates Grade. Use of words "Lecturer Grade/Trained Graduate Grade in the 1998 Rules is clear cut indication of the fact that all posts in different subjects are taken together for pressing provisions of U.P. Act No. 4 of 1994. Even seniority list which is prepared in the institution, same is not subject wise, rather seniority is determined on the strength of substantive appointment in that particular grade i.e. Lecturer Grade/Trained Graduate Grade. Contextually both the provisions are different. Under U.P. Act No. 5 of 1982, after C.T. Grade has been declared as dying cadre, there remains two grade of teacher (i) Lecturer grade (ii) T.G.T. grade and qua the said groups of teacher, determination has to be made by the institution concern and thereafter, further follow up action has to be taken up, and as such by no stretch of imagination as per scheme of things provided for subject can be treated as a 'Unit' for applying provisions of U.P. Act No. 4 of 1994 and coming to the conclusion that as there is one post of assistant teacher T.G.T. (Physical), same will go out of the provisions of U.P. Act No. 4 of 1994, such view would frustrate the very scheme of provision of U.P. Act No. 4 of 1994.
Consequently, present writ petition is dismissed.
Dt. 10.12.2010 T.S.