Brief background of the case as has been mentioned in the writ petition is that the applications were invited for the selection of Trained Graduate Teacher in Inter College by Secondary Education Selection Board, U.P. at Allahabad, namely The Advertisement No. 1-1/2010 for Trained Graduate Teacher and 2-2/2010 for teachers in Inter Colleges. The petitioner filed up application form for being appointed as Science Teacher, TGT grade Science Teacher. Number of post, as such for general candidate was 195 posts, for backward class 131 posts and for S.C. 212 posts respectively, in this way total 538 posts were there for Science Teachers. The petitioner was called for written examination and roll number allotted to him was 010500813. The petitioner qualified in written examination in the year 2010 and he was called for interview on 25.07.2011 before the Selection Committee. The petitioner got final selection against the post the Science (SC) candidate and Adarsh Inter College Jog Mushahiba, Ghazipur was allotted by the Selection Committee in the list of 11.06.2012 published by the Secondary Education Service Selection Board at Allahabad at serial no. 212 of the selection list.
After the selection, the petitioner approached the Manger of institution of Adarsh Itner College, Joga, Mushhiba, Ghazipur for his appointment where he was intimated there was no vacancy available for his appointment and he was further told that the post of teacher of science has already filled been up by one Sri Keshav Prakash son of Moti Lal R/o Village Jakhand Kala, Post Officer Fathbad, District Agra and there is no vacant place for Science Teacher. Petitioner thereafter for his appointment has given his representation to the Secretary, Secondary Education Service Selection Board at Allahabad, intimating that there was no post of Science Teacher (SC) in Adarsh Inter College Joga, Mushahiba, Ghazipur available and the District Inspector of Schools, Ghazipur too had sent letter dated 04.04.2012 to the Secretary, Secondary Education Service Selection Board at Allahabad to adjust petitioner in any other institution so that appointment of the petitioner may be done. The petitioner has given detailed representation to the Secretary, Secondary Education Service Selection Board at Allahabad to appoint him soon in any institution so that the justice may be done to him. The petitioner has filed another representation to Secretary, Secondary Education Service Selection Board at Allahabad vide its representation dated 17.07.2012. On there being complete inaction at this juncture petitioner has rushed to this Court with the request as has already been quoted above.
Sri Ajoy Kumar Banerjee, learned counsel for the petitioner has contended that in spite of the fact that he has been duly selected by the Selection Board, impossible situation has been created by not ensuring his joining and accordingly directives be issued to appoint the petitioner in some other institution to remedy the situation, as has so arisen, in the facts of present case.
Countering the said submission, learned Standing counsel as well as Sri Raghuveer Singh, Advocate submitted that requisite exercise shall be undertaken.
In the State of Uttar Pradesh, Uttar Pradesh Secondary Education Services Commission and Selection Boards has been established for selection of teachers in the institution recognized under U.P. Act No. II of 1921. Earlier the appointment of teachers in secondary institution, recognized by Board of High School and Intermediate Education was governed by U.P. Act No. II of 1921 and the Regulation framed thereunder. It was felt that the selection of teachers under the said provision was sometimes not free and fair besides field of selection was also very much restricted and same proceeded to adversely affect the availability of suitable teachers and the standard of education, in this background it was therefore considered necessary to constitute Selection Board at State Level to select Principals, Lecturers, and TGT grade teachers. As of date selection and appointment on substantive basis, is governed by the provisions of U.P. Act No. V of 1982, and U.P. Secondary Education Services Selection Board Rules 1998.
Section 3 of Chapter II of U.P. Act No. V of 1982 deals with establishment and functions of the Board; Section 4 deals with composition of the Board; Section 5 deals with term of office and conditions of service of members; Section 6 deals with power to associate; Section 10 deals with procedure of selection by direct recruitment and Section 11 deals with panel of candidates Section 12 deals with procedure of selection by promotion. Section 16 deals with appointments to be made only on the recommendation of the Board; Section 17 deals with Inquiry by Director; Section 19 empowers the Board to call for information etc. from Management and Manager is duty bond to comply with the same. Section 20 empowers the Board to inspect, record register etc. Section 22 talks of punishment for appointment of teachers in contravention of the provisions of the Act; Section 23 deals with punishment for failure to furnish information or wilful obstruction; Section 24 deals with offences by societies and Section 25 deals with bar against prosecution.
In order to carry out selection process, in exercise of powers conferred under Section 35 of Uttar Pradesh Secondary Education Service Commission Act, 1982 (U.P. Act No. V of 1982) the Governor has been pleased to make U.P. Secondary Education Services Selection Board Rules 1998; Part-3 of the said Rules deals with source of recruitment; Rule 11 deals with determination and notification of vacancies; Rule 12 deals with procedure for direct recruitment and Rule 14 deals with procedure for recruitment by promotion.
Every day before this Court, candidates duly recommended by the Selection Board are approaching this Court for ensuring their joining and also complaining that the institution, wherein there name has been recommended, therein the vacancy in question does not exist, or the vacancy is to be filled up by way of promotion or that it is a reserved post, and accordingly Secretary, Selection Board be directed to accord placement to them, in some other institution.
The question is , that when there is full fledged procedure provided for determining / notification of vacancies, and said papers pertaining to requisition / notification of vacancies, passes through the hands of various authorities, after scrutiny and ultimately to selection Board, who thereafter advertises the vacancy and ultimately proceeds to select the candidate, and selected candidate thereafter is not permitted to join then what remedial measures should be undertaken, in such a situation under the scheme of things provided for.
Relevant provisions of U.P. Secondary Education Services Selection Board Act, 1982 and U.P. Secondary Education Services Selection Board Rules 1998 are being looked into. Broadly there are three stages of selection (i) Determination and Notification of vacancies (ii) Selection process (iii) Implementation of result. The first stage is covered under Section 10 of U.P. Act No. V of 1982 and Rules 10, 11 of 1998 Rules. Same being relevant, are being extracted below:
"Section 10 of U.P. Act No. V of 1982- 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 belonging to the Scheduled Castes, the Scheduled Tribes and other Backward Classes of citizens in accordance with the Uttar Pradesh Public Services (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 recrutiment to the posts 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)] U.P. Secondary Education Services Selection Board Rules 1998 PROCEDURE FOR RECRUITMENT Rule 10. Source of recruitment - Recruitment to various categories of teachers shall be made from the following sources :
in which teachers of attached primary section are getting salary under the provisions of U.P. High Schools and Intermediate Colleges (Payment of Salaries of teachers and other Employees) Act, 1971, 75 percent posts shall be filled by direct recruitment and the remaining 25 percent posts shall be filled by promotion from amongst those trained graduate teachers of attached primary section who have completed 5 years of satisfactory service ;
Provided that if 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 respecting percentage of posts under this rule, there comes a fraction then the fraction of the posts to be filed 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.
Notes Post of Lecturers- From a plain reading of provisions of Rule 10 (6) (ii) of 1998 Rules it is clear that under the source of recruitment 50% posts of lecturers are to be filled by promotion from amongst the substantively appointed teachers of trained graduates. [Sambhoo Prasad V. Authorised Controller, Sarna, 2008 (2) ADJ 103.] 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 herein after provided.
(2) (a) The statement of vacancies for each category of posts 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 pro-forma 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 subjectwise 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 the 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 the 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 'groupwise' in respect of the Trained graduates grade means in accordance with the following, groups, namely :
(a) Language - This group consists of the subjects 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 (g) General This group consist of the subjects no 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 seniormost teachers, along with copies of their service records (including character rolls) and such other records or particulars as the Board may required, 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 a 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 it 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 to in the said sub-rule. They vacancies to the Board under this sub-rule shall be deemed to be notified by the Management of such institution.
The provision quoted above, would got to show that for making appointment by way of direct recruitment, selection 10 of U.P. Act No. V of 1982 read with Rule 10 and 11 of 1998. Rules, obligates the Management, to determine number of vacancies in accordance with Sub-Section (i) Section 10, the said determination is to be followed by notification of vacancy through the Inspector. Determination of vacancy has to be done qua existing vacancies or likely to fall vacant during the year of recruitment, and at the said point of time, the vacancies to be reserved for OBC; SC; and ST as per U.P. Act No. 4 of 1994 has also to be kept in mind. Statement of vacancies, has to be sent by Management in the proforma given in Appendix A. Appendix A is the requisition form, wherein each and every detail in reference to the institution and the vacancy is to be furnished. The District Inspector of Schools thereafter is required to verify the same, from the record maintained in his office, and thereafter forward the same to the Selection Board. The responsibility of notification of vacancies and its verification is on the Managing Committee as well as on the District Inspector of Schools.
After the vacancy in question is notified to Selection Board, then further process of selection is to be undertaken, this is the second stage, and same has been detailed out in Rule 12 of 1998 Rules, which is inclusive of Advertisement and selection process as well as preparation of panel. Rule 12 of 1998 Rules is being extracted below:
12. Procedure for the 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 application for 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 Head Master of a High School, the name and place of the institution shall also 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 wishes 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 scrutinise 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 invigilators shall be paid honorarium 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 honorarium at the rate to be fixed by the Board.
[4. The Board shall prepare list for each category of posts on the basis of marks obtained in the written examination and marks for special merits as follows :-
(a) 85 percent marks on the basis of written examination;
(b) 10 percent marks on the basis of interview which shall be divided in the following manner namely :-
(i) 4% marks on the basis of general knowledge;
(ii) 3% marks on the basis of personality test;
(iii) 3% marks on the basis of ability of expression.
(C) 5 percent marks on the basis of following special merits namely:- (i) 2% marks for having Doctorate degree; (ii) 2% marks for having Master of Education (M.Ed) degree. (iii) 1% marks for bachelor of education (B.Ed) degree. Provided that no marks under this clause shall be awarded to a candidate who has obtained marks under sub-clause (ii), (iv) 1% marks for the participation in any national level sports competition through state team. 5. The Board shall in respect to the selection for the post of Head Master and Principals, allot the marks in the following manner :- (i) 60% marks on the basis of quality points specified in Appendix 'D'. (ii) 16% marks for having experience come than the required experience in the manner that 1% marks shall be awarded for each year of such experience, subject to a maximum of 16% marks. (iii) 2% marks for research paper published in reputed journals in the manner that 1/2% marks shall be allotted for each research paper subject to maximum 2% marks. (iv) 7% marks for having Doctorate degree or 3% for Master of Education (M.ed) provided that only one degree shall be considered under this clause.
Note:- For the purpose of calculating experience the service rendered as Head Master of Junior High Schools or as assistant teacher in a High School/Intermediate College shall be counted in the case of selection of Head Master and for selection of Principal, the service rendered as Head Master of a High School or as a lecturer shall only be counted.
(v) The Board shall hold interview of the candidates and 15% marks shall be allotted for interview. Marks in the interview shall be divided in the following manner:-
(a) 6% marks on the basis of subject/general knowledge.
(b) 4% marks on the basis of personality test;
(c) 5% marks on the basis of ability of expression.] (6) The Board, having regard to the need for securing due representation of the candidates belonging 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 Principal/Headmaster, 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.
[7. The marks obtained in the quality points as referred to in sub-rule (5) by the eligible candidates shall not be disclosed to the members of the interview board.] (8) The Board then, 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 be, with the marks obtained in the interview. The panel for the post of Principal or Headmaster 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 lecturers and trained graduates grade, it shall be prepared subject wise and group wise respectively. If two or more candidates obtained equal marks, the name of the candidate who has higher quality points shall be placed higher in the panel and if the marks obtained in the quality points are also equal, then the name of the candidate who is older in age shall be placed higher. In the panel for the post of Principal or Headmaster, the number of names shall be three times of the number of the vacancy and for the post of teachers in the Lecturers and Trained graduate grade, it shall be larger (but not larger than twenty-five percent) than the number of vacancies.
Explanation :-For 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 II.
(9) At the time of interview of candidates, for the post of teachers in Lecturer and Trained graduates grade the Board shall, after showing the list of the 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 of teachers in Lecturer 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 institutions and there remains no vacancy in them, the Board 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 institution allocated to selected candidates in accordance with sub-rule (10) to the Inspector with a copy thereof to the Joint Director and also notify them on its notice board.
After the selection process is over, third stage starts, as Section 11 of U.P. Act No. V of 1982, talks of preparation of panel of those found most suitable for appointment. Panel has to be forwarded to the authority concerned, and the authority concerned thereafter has to inform Management, in respect of vacancies notified, under sub-Section (1) of Section 10 and the Management, within period of one month is obligated to issue appointment letter and compliance has also to be reported to the Selection Board through Inspector. Rule 13 also being relevant is extracted below:
Section 13. Intimation of names of selected candidates - (1) The Inspector shall within 10 days of the receipt of the panel and the allocation of institution under Rule 12-
(I) notify it on the notice board of his office ;
(ii) intimate the name of selected candidate to the Management of the institution which has notified the vacancy, with the direction that, on authorization under resolution of the management, an order of appointment in the pro forma given in Appendix "E" be issued to the candidate by registered post within 15 days of the receipt of the order or within such extended time, as may be allowed to him by the management, and also intimating him that on his failure to join within the specified time, his appointment will be liable to be cancelled;
(iii) send an intimation to the candidate, referred to in clause (ii), with the direction to report to the Manager within fifteen days of the receipt of the order of appointment by him from the Manager or within such extended time as may be allowed to him, by the Management.
(2) The Management shall comply with the direction, given under sub-rule (1) and report compliance thereof to the Board through the Inspector.
(3) Where the candidate, referred to in sub-rule (1) fails to join the post within the time allowed in the letter of appointment or within such extended time as the Management may allow in this behalf or where such candidate is otherwise not available for appointment, the Inspector may, on the request of the Management, intimate fresh name or names standing next in order of merit on the panel, under intimation to the Joint Director and the Board and the provisions of sub-rule (1) and (2) shall mutatis mutandis apply.
(4) The Joint Director shall monitor and ensure that the candidates selected by the Board joins the institution in the specified time and for this purpose, he may issue such direction to the Inspector he thinks proper.
(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 Schools 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 District Inspector of Schools the Board shall allocate such candidate to another institution in a vacancy notified to the Board.] Under Sub-Rule (4) of Rule 13, Regional Joint Director of Education has been vested with the authority to monitor and ensure that selected candidate from the Board joins the post in the specified time, and for this purpose, requisite directives can be given to District Inspector of Schools. Under Sub-Rule (5) of Rule 13 in the contingency 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 has to make recommendation to the Board for adjustment of such candidate against any other vacancy notified to the Board in any other institution. This Court, in the case of Raja Ram Vs. State of U.P. and others (Civil Misc. Writ Petition 40377 of 2008) decided on 30.11.2009 while interpreting Rule 13 (5) of 1998 Rules has taken view that adjustment is permissible against such vacancy which was advertised and offered at the time of interview in process of selection. Relevant extract of the aforesaid judgment is being quoted below.
This Court is of the opinion that the issue as to whether a vacancy falls within the quota for direct recruitment or promotion has to be determined with reference to the date of occurrence of vacancy. Since the vacancy subject matter of Advertisement No. 1 of 2005 was requisitioned by the Committee of Management for direct recruitment, it is to be presumed that the same was within the quota for direct recruitment, more so when no teacher came forward to claim promotion against the same by challenging the advertisement. The Committee of Management cannot subsequently fill such an advertised vacancy by promotion.
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.
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.
Writ petitions are allowed. Let respondents take appropriate action within the time specified.
At this juncture Section 17 is also being looked into, same is also follows:
Section 17. Inquiry by Director - (1) Where any person is entitled to be appointed as a teacher in any institution in accordance with [Chapter II], but he is not so appointed by the management within the time provided therefore, he may apply to the Director or any officer authorised by him for a direction under sub section (2) (2) [As far as may be within one month from the date receipt] of an application under sub section (1), the Director or the officer authorised by him may hold an inquiry, and if he is satisfied that the management has failed to appoint the applicant as a teacher, in contravention of the provisions of this Act, he may, by order, direct -
(a) the management to appoint the applicant as teacher forthwith, and to pay him salary from the date specified in the order; and
(b) the Head of the institution concerned to take work from him as a teacher.
(3) The amount of salary, if any, due to such teacher shall, on a certificate issued by the Director or the officer authorised by him be recoverable by the Collector as arrears of land revenue from the property belonging to or vested in the society or body running the institution.
Section 17 of U.P. Act No. V of 1982, provides forum to an incumbent, who is entitled to be appointed as teacher in institution, but he/she is not appointed by the Management, within the time frame provided for, then he can apply to the Director of Education or any Officer, authorised by him for a direction under Sub-Section (2) of Section 17. On receipt of application, enquiry is to be held, and if satisfaction is recorded that Management has failed to appoint, in contravention of the provision of the Act, then directives can be issued to appoint him/her forthwith and to pay salary from the date specified and the Head of the institution to take work. Salary due can be recovered as arrears of land revenue.
Director of Education (Secondary) as well as Regional Joint Director of Education of the Region have been vested with the authority to see and ensure joining of the selected candidates. Director of Education has authorised, Regional Joint Director of Education of the Region concerned to exercise authority under Section 17 of U.P. Act No. V of 1982, apart from the said authority Regional Joint Director of Education has been vested with the authority under Rule 13 (4) wherein he has been obligated to monitor and ensure that selected candidate joins. Regional Joint Director of Education of the Region concerned cannot escape from his liability. One cannot go soft, while dealing with the grievance of selected candidate and the authority conferred cannot be diluted, by not proceeding to exercise the same.
This Court, is of the opinion that recommendation to Selection Board, for making adjustment in another institution, in term of Sub-Rule (5) of Rule 13 of 1998 Rules, be made by the Inspector, only after enquiry is made under Section 17 of U.P. Act No. V of 1982, and it is found that it is practically impossible to enforce joining of selected candidate.
This Court has clearly taken the view that the Board cannot be permitted to recommend a candidate to an institution the vacancy whereof had been notified but was not advertised/offered to the candidates during interview. District Inspector of Schools, straight away without any enquiry are referring the matter to selections Board for adjusting incumbents in another institution. The question is what happens to Managing Committee and the District Inspector of Schools, who have notified the vacancy, by discharging their statutory obligation and qua the said notified vacancy recommendation has been made, and then situation has been created, that selected candidate is not in a position to join, on account of non-availability of vacancy.
Entire scheme of the Act and Rules quoted and noted above would go to show that full fledged procedure has been provided for determination of vacancies followed by notification of vacancies, and thereafter posts in question are to be advertised and selection proceedings are to be undertaken, followed by recommendation made in favour of selected candidate and full fledged procedure also has been provided for to enforce such recommendation and to take action against erring incumbent responsible for non compliance of recommendation.
Chapter V of U.P. Act No. 5 of 1982, deals with the penalties.
Section 22. Punishment for appointment of teachers in contravention of the provisions of the Act- Any person who fails to comply with the recommendations of the [Board] or fails to comply with the order or direction of the Director under section 17, or appoints a teacher in contravention of the provisions of this Act shall on conviction, he punished with imprisonment for a term which may extend to three years or with fine which may extend to five thousand repees or with both.
Section 23. Punishment for failure to furnish information or willfull obstruction:- If any person-
(a) willfully withholds or fails to furnish any return or information lawfully required by [****] the [Board] within the time allowed therefor; or
(b) willfully obstructs any person from duly carrying out all or any of the provisions of this Act, he shall on conviction, be punished with imprisonment for a term which may extend to one year or with fine which may extend to one thousand rupees or with both.
Section 24. Offences by societies- (1) If the person committing the offence under section 22 or section 23 is a society registered under the Societies Registration Act, 1860, the society as well as every person in charge of and responsible to the society for the conduct of its business at the time of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by registered society and it is proved that the offence has been committed with the consent or connivance of, or that the commission of offence is attributable to any neglect on the part of any member of the society, such member shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Section 25. Bar against prosecution- No prosecution for an offence under this Act shall be instituted except with the previous sanction of the Director or such officer or authority as the State Government may, by general or special order, specify in this behalf.
Provision quoted above, clearly, reflects that failure to comply with the recommendations, of the Board, invites penal consequences.
Once such is the factual situation that selected candidates are made to suffer then in such a situation, in such matter two tier exercise is required to be undertaken. At the first instance, application is to be moved before the Regional Joint Director of Education of the Region concerned, who will proceed to exercise authority under Section 17 of U.P. Act No. V of 1982 as far as may be within one month by ensuring joining of selected candidate, and if due to non-availability of vacancy or for any other reason joining could not be ensured then District Inspector of Schools be asked to recommend the matter to Selection Board, for passing orders under Rule 13(5) of 1998 Rules, keeping in view the dictum of this Court in the case of Raja Ram (supra) and the Regional Joint Director of Education, in addition to it when he finds in enquiry that there does not exist vacancy, whereas vacancy in question has actually been notified/verified, and said exercise has been undertaken by the Managing Committee and verified by the District Inspector of Schools, then qua these two agencies, action be recommended and taken in accordance with law.
In the second phase, Selection Board, after receiving the recommendation under Rule 13(5) shall proceed to take exercise for adjustment against the vacancy notified and advertised and clarified in the case of Raja Ram (supra) within six weeks from the date of recommendation by Inspector.
With the above observations and directions present writ petition is disposed of.
Copy of the judgement be forwarded to Director of Education (Secondary) for further follow up action in accordance with law.
Dated 03.09.2012 Dhruv