Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Shashi Kant, J.)
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Vishnu Shanker Gupta, learned counsel for appellants, Sri A.K. Yadav, learned counsel for respondent no. 3, learned Standing Counsel appearing for respondent nos. 1, 2 and 4 and perused the record. None appears on behalf of respondent nos. 6, 7 and 8.
2. This special appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has been filed against judgment and order dated 17.09.2013, passed by the learned Single Judge in Civil Misc. Writ Petition No. 37641 of 2012 - Avinash Kumar and Another Vs. State of U.P. and Others.
3. Relief sought by the appellants by means of this special appeal is to set aside the judgment dated 17.09.2013, passed by the Writ Court in aforesaid writ petition.
4. Brief facts giving rise to present appeal are that :
4.1 Against Advertisement No. 1 of 2002, issued by U.P. Secondary Education Services Selection Board (hereinafter referred to as the 'Selection Board'), petitioner-appellant no. 1 was selected under Schedule Caste category and recommended for appointment in Sri Nehru Inter College, Raddhana,Kanpur Dehat. Petitioner-appellant no. 2 was also selected under Scheduled Caste category and was recommended for appointment in Nagar Palika Inter College, Orai, District Jalaun. Both the petitioners could not join in the aforesaid colleges for which the recommendation was made due to the reason that one college was not in existence while there was no vacancy on another college.
4.2 Thereafter, on the representations made by petitioners-appellants, the Selection Board adjusted them in Sri Gandhi Vidhyalaya Inter College, Jhinjhak, Kanpur Dehat (hereinafter referred to as the 'Institution').
4.3 Necessary orders for adjustment with regard to petitioner-appellant no. 1 was passed on 20th April, 2005 and with regard to petitioner-appellant no. 2, on 6th July, 2005. Pursuant thereto, petitioner-appellant no. 1 joined on 02.05.2005 and petitioner-appellant no. 2 joined on 20.09.2005.
4.4 Subsequently, fresh advertisement was issued in the year 2005 by the Selection Board, in which two posts against which petitioners-appellants were adjusted in Sri Gandhi Vidyalaya Inter college, Jhinjhak, Kanpur Dehat, were also advertised.
4.5 Some of the selected candidates have challenged the adjustment of selected candidates of earlier selected candidates against the vacancies advertised in the year 2005, by way of filing Writ Petition being Raja Ram Vs. State of U.P. and Others [2009 (10) ADJ 585]. The learned Single Judge held that said adjustment was patently illegal and in the teeth of the provisions of the Act, 1982 and the Rules framed thereunder. The Court further directed that appropriate action be taken by the authorities against all such kind of appointments made by adjustment against vacancies advertised vide Advertisement No. 1/2005. In that case petitioners-appellants had sought leave to intervene in the said petition of Raja Ram and were provided opportunity of hearing by filing appropriate application. They had not challenged the judgment passed in the aforesaid case by filing appeal etc., which had become final.
4.6 Respondent nos. 7 and 8, namely Sarvesh Kumar Pandey and Anoop Kumar Pandey, who were selected pursuant to the Advertisement No. 1 of 2005, were appointed and allowed to join against the posts on which petitioners were working. The District Inspector of Schools sent a letter dated 10.04.2012, addressed to the Manager of the Institution to grant joining to the respondent nos. 7 and 8. Subsequently, a letter dated 29.05.2012, was issued by the Manager of the Institution to the petitioners-appellants, terminating their services on the ground that their adjustment was illegal.
4.7 Aggrieved by the termination of their services, the petitioners-appellants preferred Writ Petition No. 37641 of 2012 - Avinash Kumar and Another Vs. State of U.P. and Others, challenging the orders dated 10.04.2012 and 29.05.2012, passed by the District Inspector of Schools and Manager of the Institution respectively.
4.8 The aforesaid writ petition preferred by the petitioners-appellants, was dismissed vide impugned judgment and order dated 17.09.2013. Hence this appeal.
5. Learned counsel for petitioners-appellants submitted that :
5.1 Both the appellants are candidates selected by the Selection Board. They were recommended for appointment at the Institution, as in the earlier colleges for which petitioners-appellants were recommended, was defective, as in one there was no vacancy and the second was a non existing College. The appellants have been granted appointment against two post reserved for Scheduled Caste in the Institution. The original requisition had been summoned by the Court from which it transpires that the requisition was for Scheduled Caste candidates on the post. The said fact stands noticed in the stay order dated 31.08.2012, passed in Writ-A No. 37641 of 2012. In view of the aforesaid there exists no occasion for any candidate belonging to general category being subsequently directed to be appointed against the post held by the appellants.
5.2 The District Inspector of Schools at his own level issued directions for appointment of contesting respondents but there exists no such authority vested in him, in the absence of recommendation to such effect by the Selection Board.
5.3 The contesting respondent nos. 7 and 8 have been selected in pursuance to Advertisement No. 1 of 2005, dated 17.09.2005, whereas both the petitioners-appellants had already been appointed and had joined at the Institution, on 02.05.2005 and 20.09.2005, respectively, in pursuance to Advertisement No. 1 of 2002. Clearly, there exist no occasion for treating the two posts at the Institution to be covered by Advertisement No. 1 of 2005. The advertisement itself does not specify the name of any particular institution for which the vacancy had been advertised. Assumption that Advertisement No. 1 of 2005, included the two posts at the Institution, is a baseless and unsupported by any fact or documents.
5.4 The candidates lower in merit to the petitioners-appellants, selected in pursuance to Advertisement No. 1 of 2002, have been granted appointment and are continuously working, while the petitioners-appellants who are higher in merit have been rendered jobless. The impugned judgment and order passed by the Writ Court has no applicability to the case in hand, as the effect thereof is with reference to vacancies covered by Advertisement No. 1 of 2005, which subsequently stood occupied between 17.09.2005 to 30.11.2009.
5.5 The appointment and joining of the petitioners-appellants was never the subject matter of challenge directly in any proceedings.
5.6 That in any view of the matter the petitioners-appellants cannot be left unemployed as they are duly selected candidates from the Selection Board. In case on account of any reason, they are found not entitled to function at the Institution, alternatively, they are entitled for absorption against a vacant post covered by Advertisement No. 1 of 2002 or absorption against a post in some other College under Section 16EE of the Intermediate Education Act, 1921 (hereinafter referred to as 'Act, 1921').
5.7 Noticing the provisions of Section 16EE of the Act, 1921, a Division Bench of this Court by order dated 13.11.2013, passed in this appeal itself, had directed the State to seek instructions in respect of adjustment of petitioners-appellants under the provisions of Section 16EE of the Act, 1921. But no information had been supplied by the State.
5.8 Learned counsel for petitioners-appellants, lastly submitted that in the facts and circumstances of the case in hand, the appellants are entitled for appointment/absorption either in the same Institution or in some other College, as they are duly selected candidates under recommendation of the Selection Board. As such, the impugned judgment and order is liable to be set aside.
6. Sri A.K. Yadav, Advocate as well as learned Standing Counsel appearing for the respondents have submitted that:
6.1 When the petitioners-appellants did not joined the allotted colleges, the matter came back again to the Selection Board by the letter of District Inspector of Schools in which the reason were mentioned regarding not joining by the petitioners-appellants in the allotted colleges and on the basis of the letter written by the District Inspector of Schools to the Selection Board, the petitioners-appellants were required to be adjusted by the Selection Board vide orders dated 02.05.205 and 20.02.2005, on the basis of requisition dated 23.04.2003, under the provisions of Rule 13 (B) of the U.P. Secondary Education Service Selection Board Rules, 1998 (hereinafter referred to as 'Rules, 1998');
6.2 The post of L.T. Grade Teacher (Social Science) had already been filed up in the year 2005 from the petitioners-appellants, but subsequently, this Court decided the case of Raja Ram (supra) and issued certain guidelines in respect to adjusted candidates, and in pursuance to which the District Inspector of Schools passed the order and terminated the services of the petitioners-appellants and the Selection Board sent the respondent nos. 7 and 8 for appointment on the said posts, who were selected vide Advertisement No. 1 of 2005, but since these posts were already filled up by appointing the petitioners-appellants, the dispute in question arose.
6.3 In fact the requisition sent by the District Inspector of Schools in respect of Advertisement No. 1 of 2005, was erroneous, and due to which present anomaly took place, in appointing General Category candidates on the post of Scheduled Category candidates;
6.4 It is an admitted fact that petitioners-appellants were selected candidates vide Advertisement No. 1 of 2002 and the Selection Board also made adjustment under the relevant provisions but after coming of the Full Bench decision of this Court in the case of Prashant Kumar Katiyar Vs. State of U.P. and Others [(2013) 2 UPLBEC 971], the Commission is bound to follow the case of Prashant Kumar Katiyar (supra);
6.5 In the 'Adhiychan of 2001 and 2003, only one post reserved for scheduled caste has been shown and this has been sent by the Joint Director of Education to Secretary, U.P. Secondary Selection Board; the Rule 13(B) of Rules, 1998 under which adjustment of petitioners-appellants was made, was held to be ultravires by this Court and as such the orders passed by the Education Authorities, terminating the services of the petitioners-appellants are fully justified;
6.6 The Selection Board as well as District Inspector of Schools had complied with the orders passed in Writ Petition No. 40377 of 2008 - Raja Ram Vs. State of U.P. and Others and Special Appeal No. 146 of 2010 - U.P. Secondary Education Service Selection Board, Allahabad Vs. State of U.P. and Others.
7. The Writ Court, vide impugned judgment and order dated 17.09.2013, held thus :
"Respondent nos.7 and 8 who were selected pursuant to the advertisement of 2005 have been appointed and allowed to join against the posts on which petitioners were working. The order passed by the District Inspector of Schools dated 10.04.2012 addressed to the Manager of the institution to grant joining to the respondent nos.7 and 8 and subsequent letter dated 29.5.2012 issued by the Manager of the institution to the petitioners terminating their services on the ground that their adjustment was illegal are under challenge in this writ petition. The only ground taken for challenge is that respondent nos.7 and 8 belong to the general category and they could not have been appointed against the posts on which petitioners were working which admittedly were advertised in the year 2005 and shown as reserved for scheduled caste category. It is also submitted on behalf of the petitioners that in case candidates belonging to Scheduled Caste category were directed to join against the post on which the petitioners were working they could not have a case in view of the judgment in the case of Raja Ram (supra). The respondent nos.7 and 8 belong to general category and therefore they cannot displace the petitioners who were scheduled caste candidates and had been validly adjusted against the post reserved for scheduled caste category.
The point raised on behalf of the petitioner does not appeal enough so as to warrant interference in writ jurisdiction. The judgment in the case of Raja Ram (Supra) had clearly held that the adjustment of all candidates including that of petitioner on post covered by the advertisement 2005 was illegal and contrary to law. The said judgment was binding on the petitioners and their appointment had to go until and unless judgment in the case of Raja Ram (Supra) was reviewed or modified by the same Court or set aside by any superior Court. The petitioners are bound by the judgement in the case of Raja Ram (supra). They have no right to continue on the posts in question. There is thus no infirmity in the impugned orders of the District Inspector of Schools and the Manager. They are only in consequence compliance and furtherance of the judgement of this Court in the case of Raja Ram(supra). Further the petitioners in the facts of the case have no locus to challenge the joining of the respondent nos.7 and 8.
May be the appointment and the joining of respondent nos. 7 and 8 belonging to general category on posts reserved for Scheduled Caste category is also illegal and contrary to law but the petitioners in absence of any right of continuance on the posts cannot challenge the same. However, the joining of respondents no. 7 and 8 on the posts in question can be tested only in a proceedings maintained by an aggrieved person, having interest on the posts in question.
Petition lacks merit and it is accordingly dismissed."
8. From the perusal of impugned judgment and order aforesaid, it appears that the Writ Court has rejected the claim of petitioners-appellants, on the basis of observations made by this Court in the case of Raja Ram Vs. State of U.P. and Others [2009 (10) ADJ 585] (Civil Misc. Writ Petition No. 40377 of 2008, connected with Civil Misc. Writ Petition No. 61611 of 2008, decided on 30.11.2009). This Court in Raja Ram (supra), discussed in detail the discrepancies and defects in the selections made by the Selection Board in pursuance to Advertisement No. 1 of 2005. The Court observed and held thus :
"What legally follows is that a candidate selected in pursuance of any earlier advertisement cannot be adjusted against any vacancy subject matter of subsequent advertisement nor the number of vacancies advertised can be said to be filled or occupied on the strength of such illegal adjustment. It is needless to emphasis that mere selection confers no right, as has been held repeatedly by the Hon'ble Supreme Court. Reference- Judgment of the Hon'ble Supreme Court in the case of State of U.P. & others v. Rajkumar Sharma & others; (2006) 3 SCC 330, wherein it has been held that mere inclusion of the name in the select list, even if some of the vacancies remain unfilled, confers no right to claim appointment.
.................
43. This Court, therefore, holds that filling up of the advertised vacancies subject matter of advertisement no. 1 of 2005 (a) by adjustment, in exercise of powers under Rule 13(5) of 1998 Rules, of candidates selected in pursuance to the earlier advertisement, (b) by transfer of candidates from other institutions against advertised vacancies (c) by compassionate appointment (d) by promotion and (e) by absorption of subject experts under Section 21-E is patently illegal and in teeth of the provisions of the Act, 1982 and the Rules framed thereunder.
44. This Court holds that all such kind of appointments against advertised vacancies are illegal and appropriate action be taken by the authorities accordingly within four weeks from the date a certified copy of this order is filed before the Secretary, Secondary Education U.P. Government, Lucknow.
9. Against the judgment and order passed in Raja Ram (supra), the Selection Board, preferred Special Appeal No. 146 of 2010 - U.P. Secondary Education Service Selection Board, Allahabad Vs. State of U.P. and Others, which was also dismissed, by a Division Bench of this Court vide judgment and order dated 21.01.2011, observing thus :
"......... The Court found that there was no power vested in the State Government to issue Government Order for creating an authority other than the referred to in the Rules. In order to enable such authority to issue orders for making adjustment in the event a candidate is unable to join the post, which has been allocated to him, the Court held in the judgment, which holds the field that no adjustment can be made of the candidates selected in pursuance to the previous advertisements, who could not get appointment for whatever reason, which may be, to the unadvertised vacancies. The executive instructions cannot amend or supersede statutory Rules."
10. Having heard learned counsel for the parties and on perusal of record it appears that the petitioners-appellants, were duly selected and recommended for appointment in the Institution by the Selection Board under the selections made vide Advertisement No. 1 of 2002. On account of some mistake in allotting colleges, the petitioners-appellants could not join at the colleges initially allotted to them. Subsequently, they were adjusted in the Institution in question against the Scheduled Caste category posts. It appears that the two vacancies, on which petitioners-appellants were adjusted, were again advertised vide Advertisement No. 1 of 2005, against which, respondent nos. 7 and 8, were selected and recommended for the Selection Board for appointment. Under the orders of District Inspector of Schools, the Manager of the Institution, issued letters of relieving to the petitioners-appellants, stating that their adjustment in the Institution being illegal, is cancelled. Aggrieved, by the orders passed by the District Inspector of Schools and Manager of the Institution, writ petition was preferred by the petitioners-appellants, which was dismissed by the Writ Court vide judgment and order impugned in this special appeal.
11. It is not disputed that petitioners-appellants had sought leave to intervene in the aforesaid writ petition of Raja Ram (supra) and were heard. Admittedly, petitioners-appellants have not assailed the aforesaid judgment and it has become final.
12. It appears that appointments by way of adjustment under Rule 13(B) of Rules, 1998 was held to be impermissible and ab-initio void, in the case of Satish Kumar Vs. State [E.S.C. 2006 (4) 2786] and Special Appeal No. 1513 of 2010 - Shivani Gupta Vs. State of U.P. and Others, decided on 05.10.2010, which has been upheld by the Hon'ble Apex Court in S.L.P. (Civil) No. 1760 of 2011, decided on 07.02.2011. The Court in Shivani Gupta (supra) held thus :
"The Scheme of the Act and the Rules examined in all the aforesaid cases provides for determination of the vacancies before they are advertised for selections. The interpretation of Section 10 of the Act of 1982 and the Rules of 1998, serves the principles of equality of opportunity in employment guaranteed under Articles 14 and 16 of the Constitution of India. The post, which has not fallen vacant, and has not been notified, cannot be filled up by appointment of a candidate in respect of any previous advertisement and selections carried out by the Board. Sub rule (5) of Rule 13 was apparently inserted to overcome the difficulty where a candidate could not join in an allocated institution due to non-availability of vacancy or for any other reason. The words 'any other reason' have not been defined nor there is any explanation given to it in the Rules of 1998. In such case the District Inspector of Schools can recommend, as provided by sub rule (5), to the Board, for adjustment of such candidate against any other vacancy notified to the Board in any other institution. The words 'any other vacancy notified to the Board' is used in past perfect tense. Sub rule (5) has been placed at the bottom of Rule 13 providing for intimation of names of selected candidate. The intimation has to be given for making placement and thus in that sense also the words 'any other vacancy notified to the Board' would mean a vacancy, which has been notified but could not be filled up. Any future vacancy in any institution, notified subsequent to the advertisement, cannot be filled up from such candidates as that vacancy was not made open for selections in accordance with the procedure prescribed under the Act and Rules."
13. In view of above discussion, we conclude that though, petitioners-appellants were duly selected candidates by the Selection Board and were given appointment in the Institution in question by way of adjustment made under the relevant Rules, their services stood terminated, in accordance to law laid down in Raja Ram (supra), in which the Court clearly laid down the law therein that the adjustment of all candidates including that of petitioners-appellants was illegal and contrary to law. It appears that petitioners-appellants, in that case had sought leave to intervene and were heard. It is also an admitted fact that they had not assailed the judgment in that case and thus it became final, therefore, facts of the case of Raj Ram (supra) are similar to the petitioners case and they are bound by the law laid down therein. Accordingly they have no right to continue on the posts in question.
14. In view of above, we are of the considered opinion that the judgment and order passed by the Writ Court suffers from no illegality or infirmity, and same is accordingly upheld.
15. However, keeping in view the fact that petitioners-appellants are duly selected candidates by the Selection Board, who were appointed at the Institution in question by way of 'adjustment' permissible under the relevant Act and Rules, admissible at that point of time, and having worked on the said post for some time, therefore, in our view, terminating their services out rightly would be unjust to them. As such, we direct the Selection Board to look into the matter, afresh and see, if they could be appointed in some other Institution where posts are still lying vacant, under the relevant Act/Rules/Guidelines, by also providing them benefit of their past services, if there is no other legal impediment.
16. This special appeal is accordingly disposed of.
17. No order as to costs.
Order Date :- 12.01.2016 A. Verma