Court No. - 5
Case :- WRIT - A No. - 18401 of 2019 Petitioner :- Rajendra Singh Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Siddharth Khare, Ashok Khare (Sr. Advocate) Counsel for Respondent :- C.S.C., A.K.S.Parihar Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ansul Bhatnagar, holding brief of Sri Siddharth Khare, learned counsel for the petitioner and Sri Gajendra Pratap, learned Senior Advocate, assisted by Sri A.K.S. Parihar, learned counsel for the respondent no.3 and Sri D.N. Mishra, learned standing counsel for the respondent nos. 1, 2, 4, 5 and 7.
2. On 03.12.2019, this Court passed the following order:-
“Heard Sri Ashok Khare, learned senior advocate assisted by Sri Ansul Bhatnagar, learned counsel for the petitioner, the learned standing counsel for State-respondents and Sri A.K.S. Parihar, learned counsel for the respondent No.3.
It is admitted to the respondents that the petitioner was selected in the selection process carried pursuant to Advertisement No.2 of 2011. An appointment letter was issued directing her to join in the institution Sahav Singh Inter College, Dariyapur, Hathras. Subsequently, the sanctioned strength of 13 trained graduate teachers of the said institution was reduced to 11 assistant teachers out of which 10 were found working and the one vacant post was reserved for scheduled caste. Therefore, the said institution has not given joining to the petitioner. The petitioner represented before the respondent Nos.3 and 4 both. The respondent No.3 wrote a letter to the respondent No.4 in this regard. In response, the respondent No.4 wrote a letter No.3609-13/2019-20 dated 03.09.2019 intimating the aforesaid facts and requesting to allot/ adjust the petitioner in some other institutions. More than three months have passed but the respondent No.3 has not taken any action.
In Civil Appeal No.10808 of 2017 (U.P. Secondary Service Selection Board vs. State of U.P. and others), Hon'ble Supreme Court considered similar matter and passed an order dated 23.08.2017 observing, as under:
"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."
In view of the aforesaid, the respondent No.3 is directed to show cause for its inaction. Let the matter be put up in the additional cause list on 10.12.2019.”
3. Today, an affidavit of Kirti Gautam, Secretary, U.P., Secondary Education Services, Selection Board, Prayagraj, dated 18.12.2019, has been filed on behalf of the respondent no.3. In paragraphs 4, 5 & 6 of the aforesaid affidavit, the respondent no.3 has stated as under:-
“4. That, however, it is evident from the communication dated 03.09.2019 of the District Inspector of Schools that the post in the said college does not exist now. In view of the said fact, the respondent Board cannot proceed any further to make placement of the petitioner in any other College because all the vacancies that were advertised in year 2011 have been filed up and the Board has been legally advised to state that it cannot make placement of a candidate against the vacancy which has not been advertised.
5. That so far as the Order dated 23.08.2017 of Hon'ble Supreme Court passed in Civil Appeal No.10808 of 2017 and other connected Appeals to it is concerned the same was subsequently clarified by the Order dated 17.08.2018. This clarificatory order of Hon'ble Supreme Court was passed on the application of the respondent Board wherein a prayer was made to the effect that the said order be limited to those 642 candidates only who had approached the Hon'ble Supreme Court through their respective applications. The Hon'ble Supreme Court allowed the Clarificatory application of the respondent Board in term of its prayer (a). A true copy of the said Clarificatory Application and the Order passed on it by the Hon'ble Supreme Court are being filed herewith and marked as Annexure No.1 & 2 respectively to this affidavit.
6. That the respondent Board has been legally advised to state that the said two orders (23.08.2017 and 17.08.2018) of the Hon'ble Supreme Court passed under Article 142 of the Constitution of India and does not partake characteristic of declaration of law by the Hon'ble Supreme Court under Article 141 of the Constitution of India.”
4. Counter affidavit on behalf of the respondent nos. 1, 2, 4 and 5 has not been filed.
5. The order of Hon'ble Supreme Court as reproduced in the aforequoted order dated 03.12.2019 can not be said to be an order under Article 142 of the Constitution of India as alleged by the respondent no.3 in his aforesaid affidavit.
6. Sub Rule (2), (4) and (5) of Rule 13 of the Uttar Pradesh Secondary Education Services Selection Board, Rules 1998 provides as under:-
(2) The Management shall comply with the directions, given under sub-rule (1) and report compliance thereof to the Board through the Inspector.
(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 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.
7. It shall not be out of place to mention that when the Committee of Management of Sahab Singh Inter College, Dariyapur, Hathras, did not allow the petitioner to join pursuant to recommendation made by the board despite communication by the D.I.O.S., Hathras, vide letter dated 08.08.2019, then the petitioner represented before the D.I.O.S., Hathras on 19.08.2019 and before the Regional Joint Director of Education, Aligarh on 20.08.2019. The Joint Director of Education wrote a letter dated 24.08.2019 to the D.I.O.S. Hathras to submit a report. By letter dated 03.09.2019 the D.I.O.S. Hatharas, intimated the Board, the Director of Education (Secondary) U.P. Lucknow and the Joint Director of Education, Aligarh, that the post is not vacant in Sahab Singh Inter College, Dariyapur, Hathras, which is the institution allotted to the petitioner. The D.I.O.S. Hathras, wrote another letter dated 03.09.2019 to the Secretary U.P. (Secondary) Education Services Selection Board, the Director of Education (Secondary) U.P. Lucknow and Regional Joint Director of Education, Aligarh, apprising them the facts and requested to adjust the petitioner in some other institution. Thereafter on 04.11.2019, the D.I.O.S. Hathras, wrote a letter addressed to the Secretary U.P. Secondary Education Services Selection Board and copy to the Director Education (Secondary) U.P. Lucknow and the Regional Joint Director of Education, Aligarh, requesting to adjust the petitioner in Seth Harcharan Das Girls Inter College, Hathras.
8. Neither any comment with regard to the aforesaid letters of the D.I.O.S. Hathras, have been made by the respondent no.3 in his affidavit filed today nor the respondent no.3 has filed any document to show that he responded to the aforesaid letters. The respondent no.3 merely stated in the aforesaid affidavit filed today that the order of the Hon'ble Supreme Court is under Article 142 of the Constitution of India, and, therefore, the petitioner is not entitled for the benefit thereof and he can not be given joining. This prima facie shows inaction on the part of the respondent no.3 to the letters/request of the D.I.O.S., Hathras, and disobedience of the statutory mandate contained in sub Rule 5 of Rule 13 of the Rules, 1998.
9. Alongwith the writ petition the petitioner has also filed a copy of a letter dated 04.10.2019, said to have been issued by the respondent no.7, which has been written by the Principal of the respondent no.7 institution mentioning that there is a post vacant in the institution and if the petitioner is appointed on the vacant post in the institution then the institution shall have no objection. The respondent no.3 has also not made any comment on the aforesaid letter or the various letters of the D.I.O.S. mentioned above, in her affidavit filed today.
10. Even after having been duly selected by the Board, the petitioner is running from pillar to post with no fault on his part. None of the respondents have taken any action so far including the respondent nos.1, 2 and 3. This shows complete inaction and non discharge of duties by the respondent nos. 2 and 3 under Rule 13 of the Rules 1998.
11. In view of the aforesaid, the only option left is to call upon the respondent no.1 to explain the situation and to show cause for inaction of the respondent nos. 2, 3, 4 and 5. He shall also clearly state in his personal affidavit, about the adjustment of the petitioner either in the institution allotted to him or in some other institution.
12. The aforesaid personal affidavit in the form of counter affidavit shall be filed by the respondent no.1 within ten days.
13. Put up in the additional cause list on 02.01.2020 . In the mean time the respondent no.3 may also file counter affidavit.
Order Date :- 19.12.2019/vkg