Court No. - 33
Case :- WRIT - A No. - 5096 of 2015
Petitioner :- Rakesh Kumar
Respondent :- State Of U.P. And 7 Ors.
Counsel for Petitioner :- D.K. Singh,Ram Pyare,Rama Shankar Mishra,Sanjeev Singh,Seemant Singh
Counsel for Respondent :- C.S.C.,Ajeet Kumar Baranwal
Hon'ble Ashwani Kumar Mishra,J.
Order on Civil Misc. Amendment Application No. 22 of 2020 Heard.
Amendment application is allowed.
Let necessary amendment be carried out during course of the day.
Order on Petition This writ petition has been filed for a direction upon the respondents to grant seniority to the petitioner from the date of initial appointment by the Board with other consequential benefits.
Facts giving rise to filing of the present writ petition are required to be noticed at the outset. Uttar Pradesh Secondary Education Service Selection Board (hereinafter referred to as the Board) published Advertisement No. 1 of 2003 for selection to different post of Lecturer in the aided education institutions recognized by the Board. Petitioner applied against said post and was selected in the Scheduled Caste Category. He was offered appointment on the post of Lecturer in Sri Jagat Guru Shankaracharya, Inter College, Mehdawal, Sant Kabir Nagar on 17.3.2005.
Petitioner's placement in the College concerned came to be questioned by one Kirti Prakash Misra, who was seeking promotion on the post against which the petitioner was appointed in Sri Jagat Guru Shankaracharya Inter College. Aggrieved by the placement of the petitioner, Kirti Prakash Misra filed writ petition No. 18899 of 2005 challenging the select panel, which included the petitioner, on the ground that post itself was reserved for promotion and not for direct recruitment. This writ petition came to be allowed by this Court on 27.11.2006. Facts, which were relevant for the present purposes have been noticed in the order of the Court. Relevant portion of the order dated 27.11.2006, reads as under:-
"It is apparent that only one post of Lecturer (Geography) was requisitioned vide letter dated 18.9.2002, photo copy of which has been received. Against such vacancy one candidate alone can be empaneled for the post of Lecturer (Geography). In Jagat Guru Shankaracharya Vidyalaya Inter College, Mehdawal, Sant Kabir Nagar. However, it is further admitted from the record that selection board with reference to Advertisement No. 1/2003 has declared select panel on 7.2.2004, wherein two teachers have been recommended against one post of Lecturer accordingly. At Serial No. 28 of the list of candidates empanelled in general category. One Brijendra Pratap Singh has been recommended while at Serial No. 61 of the list of candidates belonging to Schedule Caste Category, one Rakesh Kumar has been recommended. On being asked as to how second candidate has been recommended when one vacancy was requisitioned. Sri Dubey produced a copy of the letter sent by District Inspector of Schools, Basti which has been received by hand in the office of Secondary Education Service Commission on 5.7.2004. On the basis of said letter it is alleged that another vacancy was empanelled within reserved category. It is further admitted that as per record available the vacancy requisitioned under letter dated 10.5.2004 was not the subject matter of advertisement no. 1 of 2003. It is surprising to note that the letter specifically records that vacancy is to be filled by promotion. Despite such requisition the Board has empanelled the candidates in pursuance to advertisement no. 1/2003. This Court has no hesitation in recording that the Board has acted in an arbitrary manner and ha flouted the Rules, which has resulted in a chaos being created.
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It is provided that Rakesh Kumar may make an application for his adjustment in some other institution in accordance with law having regard to the post which were subject matter of advertisement and which remaind unfilled within two weeks from today. One such application being made the Board shall take action in accordance with law within a period of two weeks thereafter. After one month Rakesh Kumar shall cease to function in the institution and shall join on the post for which he is directed to be adjusted by the Board, as directed above."
Pursuant to the above observations of the writ court, the Secretary of the Board has passed an order on 3.7.2007 directing the District Inspector of Schools, Sant Kabir Nagar to adjust the petitioner in any other institution against post of Geography in Scheduled Caste Category. Consequent upon such observation of the Board, the District Inspector of Schools, Sant Kabir Nagar has directed petitioner to be allowed joining in Nehru Krishak Inter College Khalilabad, Sant Kabir Nagar. Petitioner, accordingly, has actually joined on 20.9.2007. He has been accorded seniority in the institution on the post of Lecturer from the date of his joining.
According to petitioner, he was selected by the Board and, therefore, had acquired right to be granted seniority from the date other selected persons in the panel had been accorded seniority. Petitioner, accordingly, contends that his period of working in Sri Jagat Guru Shankaracharya Inter College be taken note of for the purposes of reckoning the seniority in the subsequent institution i.e. Nehru Krishak Inter College Khalilabad, Sant Kabir Nagar. As this claim has not been considered by the management and his claim for payment of bonus etc. has been rejected, the petitioner has approached this Court. It is contended that petitioner's claim for appropriate placement in the seniority list of the institution has not been examined and, therefore, direction is sought from this Court against the respondents to consider petitioner's claim.
A counter affidavit has been filed by the respondent no. 6, who is contesting the petitioner's claim of seniority from the previous date. It is stated that petitioner has been illegally allowed joining in Nehru Krishak Inter College Khalilabad, Sant Kabir Nagar, inasmuch as, the post of Lecturer in the said institution was reserved for OBC category candidate, but the petitioner has been erroneously and illegally adjusted against such post, although he belongs to Scheduled Caste and not Other Backward Class. It is also stated that the petitioner has no right to claim seniority from a previous date, inasmuch as, his very initial selection itself was against a non-existence post.
By means of an amendment application the petitioner has also sought quashing of the seniority list prepared by the subsequent institution i.e. Annexure 4 to the amendment application in which petitioner's seniority is shown from 20th September, 2007.
I have heard Sri Sanjeev Singh, learned counsel for the petitioner, Sri Ajeet Kumar Baranwal, learned counsel for the respondent and perused the materials on record.
Facts, which have been noticed by this Court in the previous round of litigation needs to be taken note of before proceeding any further. This Court has clearly recorded that only one post of Lecturer in Geography was requisitioned in Sri Jagat Guru Shankaracharya Inter College, Mehdawal, Sant Kabir Nagar. The Court had summoned original records and it transpired that the select panel prepared by the Board included the name of the petitioner only because of the fact that a vacancy had been requisitioned on 10.5.2004. It has been further noticed that vacancy requisitioned was to be filled by promotion. In such circumstances, no vacancy on the post of Lecturer in Scheduled Caste Quota was ever requisitioned for the Institution against which the petitioner's name was included in the select panel. However, as petitioner had not only been selected, but had been permitted to join by the Board, as such, this Court while allowing the writ petition on 27.11.2006 observed that petitioner's claim for adjustment be considered against a post which was duly advertised vide Notification No. 1 of 2003 and had remained pending.
The adjustment of petitioner, as per law, could have been made only in terms of the observation made by this Court on 27.11.2006. The respondents in their counter affidavit have specifically stated that there exists only post of Lecturer in Geography in Nehru Krishak Inter College Khalilabad, Sant Kabir Nagar was reserved for OBC category and was not meant for a Scheduled Caste Category candidate. Specific averment made in paragraph 6 of the counter affidavit has not been denied in the rejoinder affidavit. It is, therefore, apparent that the placement of petitioner in respondent no. 5 Institution has not been allowed in terms of the observation made by this Court on 27.11.2006. However, as the placement of petitioner in respondent no. 5 Institution is not under challenge and he has otherwise worked for the last 13 years, as such, it would not be appropriate for this Court to interfere with the working of the petitioner in the Institution concerned. However, when it comes to the determination of petitioner's seniority, he cannot claim any equity or right to be placed higher in seniority merely because of his selection against Advertisement No. 1 of 2003. This is so as the placement of petitioner's name in the select panel itself was not in accordance with law. Even his subsequent adjustment is not in terms of the observation made by this Court. Petitioner, therefore, having been granted seniority from the date of his joining in the institution itself cannot now claim seniority from any prior date.
The writ petition lacks merit and is accordingly, dismissed.
It is however clarified that benefits which have already been granted to the petitioner on account of his working in respondent no. 5 Institution shall not be withdrawn, nor his working would be discontinued on account of dismissal of this writ petition.
Order Date :- 7.1.2021 Ranjeet Sahu