Court No. - 40
Case :- SPECIAL APPEAL No. - 19 of 2018
Appellant :- Mukesh Kumar And 5 Others
Respondent :- State Of U.P. And 8 Others
Counsel for Appellant :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.,Javed Husain Khan,Shiv Nath Singh,Vivek Mishra
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Harsh Kumar,J.
This appeal questions the impugned judgment dated 14.12.2017 of the learned Single Judge to a limited extent of the modification in the relief to the writ petitioners as contained in paragraph no.97 of the impugned judgment. Paragraph no.97 is extracted herein under:-
"97. The writ petitioners therefore cannot be ousted from service altogether and shall be kept at the bottom of the rectified Select List issued for Advertisement No. 1 of 2010, and also any other Select List on the basis of any later advertisement issued by the Selection Board, selection on the basis of which has been completed and recommendations made for appointment. The petitioners shall be offered fresh appointments on the posts of Hindi Teachers L.T. Grade in Institution, which have determined such vacancies in direct recruitment quota and intimated them to the District Inspector of School concerned and further notified to the Selection Board, but on which vacancies selection has not been advertised or finalized by the Selection Board till date."
Ms. Neha Roy Chaudhary, learned counsel submits that a Division Bench of this Court while entertaining the appeal has been pleased to grant the following interim order on 29.01.2018:-
"The appellants are working since 2011. The writ petition was allowed by the impugned order dated 14.12.2017. The learned Single Judge however in paragraph 97 has directed that the petitioners would be given fresh appointment. It is this portion of the impugned order to which the appellants are aggrieved.
Sri Ashok Khare, the learned Senior Counsel assisted by Sri Siddharth Khare, Advocate appearing on behalf of the appellants submits that in the event, fresh appointments are given, they will loose their seniority and they will be placed at the bottom on minimum pay scale, which may cause financial loss. Therefore, this aspect is required to be re-considered in the light of the decision of the Supreme Court in Civil Appeal No. 367 of 2016, Ran Vijay Singh and others Vs. State of U.P. and others. The learned Senior Counsel further submitted that in the event, the appellants are retained in service on the post and in the institution they are working, the other respondents will have no grievance in so far as their appointments are concerned. Prima facie, this requires consideration.
Let this appeal be listed for final disposal on 26th February, 2018.
In the meanwhile, the direction that the petitioners shall be given fresh appointment shall remain stayed. We also direct that the appellants shall be allowed to continue on the post on which they were working till further order of this Court.
It is made clear that the remaining directions given by the learned Single Judge have not been stayed by this Court".
It has also been brought to our notice that the issue with regard to accommodating selected candidates has been dealt with by the Apex Court and the Board has been held to have the authority continue to accommodate such candidates. The judgment in the case of U.P. Secondary Education Service Selection Board Vs. The State of U.P. and others decided on 23.08.2017 is extracted herein under:
“Leave granted.
2. I.A. No.74173/2017 is allowed at the risk of the appellant(s).
3. The appellants are aggrieved only to the extent of the following answer in the impugned Reference Order:-
Secondary Education Services Selection Board Rules, 1998 as affirmed in the case of U.P. Secondary Education Services Selection Board Allahabad v. State of U.P. & Ors. (Special Appeal No.146 of 2010 decided on 21.01.2011) is upheld as laying down the law correctly by confining its applicability to the vacancies that are subject matter of the same advertisement and not to such vacancies that were notified but not subject matter of the same advertisement."
4. According to the learned counsel, in case the candidates who have reported pursuant to the advice and in case they are not accommodated, their case will have to be dealt with in terms of Rule 13 of the 1998 Rules, which has been amended on 23.01.2007. The amendment, to the extent relevant, reads as follows:-
"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 Schools shall recommend to the Board in any other institution. On receipt of the recommendation of the District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board."
5. The issue pertains to the candidates who have already been selected but could not be accommodated for want of vacancies. In such cases, it cannot be said that the Board has no power to accommodate them. They will have to be certainly accommodated in available or arising vacancies.
6. The impugned order will stand clarified to the above extent.
7. The appeals are, accordingly, disposed of.
8. Pending applications, if any, shall stand disposed of.
9. There shall be no orders as to costs”.
Shri R.K. Ojha, learned Senior counsel appearing for the contesting respondents no. 3 to 9 contends that he does not propose to support the impugned finding recorded by the learned Single Judge in para 97 of the judgment under appeal as extracted herein above, and to that extent the appeal of the appellants may be allowed.
We have also heard Shri Shiv Nath Singh, learned counsel for the respondent no. 2 and the learned standing counsel for the first respondent who also have not contested the said position.
Having examined the same and having considered the concession made by Shri R.K. Ojha, learned Senior counsel to the aforesaid extent, we find no prejudice caused to other contesting respondents or to the selection proceedings or otherwise. We accordingly keeping in view the prima facie observation made in the interim order dated 29.01.2018 while agreeing with the same, partly allow this appeal and set aside the directions contained in the paragraph no. 97 of the impugned judgment extracted herein above. The appellants shall be entitled to continue to receive the benefits being the candidates selected in the first selection according to the select list prepared therein and they shall continue as teachers in the institution where they have joined.
The appeal stands allowed accordingly.
The respondent-State and the Commission shall proceed to comply with the rest of the directions issued by the learned Single Judge.
Order Date :- 26.10.2018 Bhanu/Tamang