1. Heard Sri V.K.Singh and Sri G.K.Singh, learned counsel for the petitioner, Sri R.C.Dwivedi and learned Standing Counsel for the respondents.
2. The petitioner is a Committee of Management Shri Mathura Inter College, Naharpur, District Azamgarh (hereinafter referred to as the "College") and has come to this Court by means of present writ petition under Article 226 of the Constitution of India aggrieved by order dated 06.6.2008 of U.P. Secondary Education Services Selection Board (hereinafter referred to as "Board") whereby respondent No.4, it is said, has been allocated for appointment as Lecturer (English) in the petitioner-College and consequential orders dated 2.9.2008 and 10.9.2009 passed by District Inspector of Schools, Azamgarh (hereinafter referred to as "DIOS") for such appointment of respondent No.4.
3. The case of petitioner is that one Ram Bali Yadav was working as Lecturer (English) in the College and retired on attaining the age of superannuation and completing the session on 30th June, 2006. The vacancy occurred on 1st July, 2006. The Committee of Management anticipating the said vacancy sent requisition to respondent No.2 through DIOS- respondent No.3 in January, 2006.
4. Instead of making any selection pursuant to the aforesaid requisition, respondent No.2, however, allocated respondent no.4 for appointment as Lecturer (English) in the petitioner's College though he was selected pursuant to a selection made in 2004, inasmuch as, respondent No.4 was interviewed on 24.8.2004 and after selection, was allocated for appointment in Vindhyeshwari Inter College, Tulsinagar, Azamgarh, as is evident from the order dated 16.3.2005 (Annexure 2 to the writ petition) issued by DIOS. It appears that he did not join thereat since one Udai Raj Vishwakarma was already working on the said post and had continued pursuant to some order passed by this Court in a writ petition filed by Sri Vishwakarma.
5. Subsequently, by insertion of sub rule 5, Rule 13 of U.P. Secondary Education Service Commission Rules, 1998 (hereinafter referred to as "Rules 1998") was amended and pursuant thereto respondent No.2 sought to appoint respondent No.4 in the College vide its letter dated 6.6.2008 and in compliance thereof DIOS has issued subsequent impugned order dated 2.9.2008 and 10.9.2009.
6. Sri G.K.Singh, Advocate contended that vacancy of Lecturer (English) in the College was not subject matter of selection in which respondent No.4 was selected and he cannot be appointed against a vacancy which has occurred subsequently and has not undergone the process of selection there against hence the impugned order is illegal and liable to be set aside. Reliance is placed on this Court's decision in Satish Kumar Vs. State of U.P. & Ors. 2006(3) LBESR 728 (All) and Shivani Gupta Vs. State of U.P. & Ors. 2011(1) ESC 331.
7. The respondent No.2 has filed counter affidavit sworn by Sri Naval Kishore, Deputy Secretary of the Board and it is admitted therein that an advertisement was published in 2003 vide advertisement No.1/2003 pursuance whereto respondent No.4 was selected for the post of Lecturer (English) in Scheduled Caste category and he was allocated Bindeshari Inter College,, Tulsi Nagar, Azamgarh vide select penal issued on 14.12.2004. The respondent No.4, however, could not join the said institution since the management of Bindeshari Inter College informed that one Udai Raj Vishwakarma was working as Lecturer (English) in the College pursuant to an interim order dated 9.7.2002 in Writ Petition No.10871 of 1996 and was getting salary, hence respondent No.4 cannot be allowed to join. Thereafter respondent No.2 in purported exercise of power under Rule 13(5) of Rules 1998, as amended in 2007, allocated respondent no.4 to the petitioner's college and the impugned orders are perfectly in accordance with law.
8. A separate counter affidavit has been filed by respondent No.4 also wherein the facts, as stated in counter affidavit of respondent No.2, have been repeated. It is submitted on his behalf that he is a candidate selected by Board cannot be made to suffer for the fault of respondent No.2 and 3 and therefore his legal right of appointment on the post of lecturer after selection should not be interfered by this Court.
9. The facts, as discussed above, which are virtually admitted clearly show that vacancy, which has occurred subsequently, is being sought to be filled in pursuant to a selection made much earlier. The vacancy in question occurred on 1st July, 2006 and respondent No.4, who was selected against a vacancy which was in existence and already advertised vide advertisement no.1/2003 in 2003 is being appointed against this subsequent vacancy. This Court has held that such recourse cannot be taken even by reference to Rule 13(5) of Rules 1998 and such an attempt on the part of respondent No.2 is wholly illegal.
10. In Shivani Gupta (supra) in paras 6, 7 and 8 of the judgment this Court has held as under:
"6. This Court has held in Satish Kumar v. State of U.P. and Ors., 2006 (4) ESC 2786 (All)(DB), prior to the amendment and also in the subsequent judgments in Chandresh Nath Singh Baghel v. Bhagwan Singh Sisodia and Ors., 2008 (1) ESC 428 (All), as well as in the matter of appointment of Principal under a similar rule of U.P. Higher Education Service Selection Board Act, 1980 in Yagya Narain Shukla v. State of U.P. and Ors. 2009 (10) ADJ 182 (DB) and Raja Ram and Anr. v. State of U.P. and Ors. 2009 (10) ADJ 585, that appointment to a post can be made only after the posts have been declared vacant and have been advertised in accordance with the statutory procedure prescribed for selection. The vacancy can thereafter be filled up under the Rules of 1998, which requires the Board to determine and notify the vacancies under Rule 11 and by following a procedure for direct recruitment in Rule 12.
7. 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 the 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.
8. In the present case learned single Judge has correctly appreciated the legal position in holding that the post, which fell vacant on 30.6.2007, even if it was notified to the Board, could not be filled up by a candidate selected in pursuance of the advertisement No. 2 of 2004 (published on 28.11.2005) and empanneled on 19.1.2006.
11. Though judgment in Satish Kumar (supra) is prior to the amendment in Rule 13 but in principle, it also lay down the law that the person who has not been selected against a subsequent vacancy and has not undergone the process there against of selection cannot be appointed on such vacancy. This court has relied on several decisions of Apex Court which have settled unquestionably that a person selected earlier cannot be appointed against a vacancy which occurred subsequently and in respect whereto the process of selection has not undergone at all.
12. In this view of the matter the appointment of respondent No.4 on the vacancy in question by means of impugned orders cannot sustain.
13. There is another aspect of the matter. I have gone through Rule 13 very carefully and finds that even this Rule nowhere suggest appointment of a person selected in an earlier selection against a subsequently occurred vacancy unless some words are inserted or read therein, which is ordinarily against the well known principles of interpretation. Rule 13(5) read as under:
"(5) Where a candidate selected by the Board could not join in an allocated institution due to non-availability of vacancy or for any other reason, the District Inspector of School shall recommend to the Board for the adjustment of such candidate against any other vacancy notified to the Board in any other institution. On receipt of the recommendation of the District Inspector of School the Board shall allocate such candidate to another institution in a vacancy notified to the Board."
14. It talks of the situation where a candidate selected by the Board and is allocated for appointment to a particular institution cannot join thereat due to non availability of vacancy or for any other reason. It thus contemplates a situation where a person selected and assigned a particular vacancy in a particular institution fails to get appointment therein for non availability of vacancy or any other reason. The contingency may be for that the vacancy may have abolished later on or some person appointed on ad hoc basis has already been regularized or on account of some judicial order such appointment cannot be made. Such selected candidate will not render without any remedy or right of consideration for appointment against any other vacancy notified to the Board in other institution. Here the subsequent clause "any other vacancy notified to the Board in any other institution" does not refer to a subsequent vacancy which is/was not part and parcel of the same selection and advertisement. A plain and simple reading of sub Rule (5) shows where the incumbent is not appointed in an allocated institution, he can be adjusted in any other institution against the vacancy notified to the Board. It will have to be read and confined to the same selection and advertisement in which the incumbent was selected and cannot be read as if it would amount to even such a vacancy which was not part and parcel of the earlier selection but simply has been notified to the Board even much later point of time. If this Rule is to be read in such a wider sense, as has been suggested by the respondents, validity of Rule itself would be doubtful. It is well settled principle of interpretation that the Court shall follow and read a provision in a manner which would be consistent with its constitutional validity and not in a manner which would bring any invalidity therein.
15. Moreover, the Clause "in any other vacancy notified to the Board in any other institution" in order to cover a subsequent vacancy will have to be read as if the vacancy is notified subsequently. While interpreting a provision of the statute it is to be read as if nothing is to be added therein. In this view of the matter also Rule 13(5) would not entitle respondent No.2 to make appointment of a candidate selected in an earlier selection against a vacancy which has occurred much subsequently and has been notified thereafter.
16. In the result, writ petition is allowed. The impugned orders dated 06.06.2008, 2.9.2008 and 10.9.2009 (Annexure 3 and 4 to the writ petition) passed by DIOS are hereby quashed.
17. However, this order shall not preclude the respondent No.4 from pursuing his claim for consideration of appointment pursuant to his selection vide penal dated 14.12.2004 in any vacancy notified against which he was selected.
Order Date :- 2.7.2012 KA