Heard Sri Arun Kumar Shukla, learned counsel for the petitioner, Sri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State-respondents, Sri R.K.S. Suryavanshi, Advocate for the opposite party no. 7 i.e. Secretary, U.P. Secondary Education Service Selection Board, Prayagraj, Sri J.P. Awasthi, Advocate for opposite party no. 5 i.e. Committee of Management and Mohd. Altaf Mansoor, Advocate for opposite party no. 6 / private respondent.
By means of this petition the petitioner has assailed the order dated 2.2.2019 passed by the District Inspector of Schools, Sultanpur, as contained in Annexure no. 2 to the writ petition whereby the committee of management has been apprised that one Anubhav Jaiswal (Other Backward Class), opposite party no. 6 has been selected by the U.P. Secondary Education Selection Board (hereinafter referred to as the Selection Board) on the post of Lecturer (Commerce), therefore, the said selected candidate to be permitted to submit his joining on the post in question.
The case set forth by the learned counsel for the petitioner is that the petitioner was appointed on the post of Lecturer (Commerce) due to retirement of one Sri Yogendra Narain Mishra, therefore, the private respondent may not be permitted to submit his joining on the post of Lecturer (Commerce) and the petitioner be permitted to continue on the said post and he be paid his salary and other benefits.
By means of this petition the short controversy for adjudication is as to whether a person who was appointed on adhoc basis may be permitted to continue after the regularly selected person comes from the Selection Board to join on the said post.
Learned counsel for the petitioner has enclosed his appointment letter dated 29.10.2011 (Annexure no. 4 to the writ petition) whereby he was appointed on the post of Lecturer (Commerce) on adhoc basis. It is an admitted position that the relevant paper relating to the appointment of the petitioner were were sent before the District Inspector of Schools, Sultanpur for financial approval but no financial approval was accorded.
The learned counsel for the petitioner has himself enclosed Annexure no. 3 which is an extract of Form-Kha wherein the full details regarding occurrence of the vacancy in question has been given and perusal thereof reveals that the post of Lecturer (Commerce) for OBC category was lying vacant.
In this matter the learned Additional Chief Standing Counsel was directed to produce the relevant record and the relevant records were produced along with instruction letter dated 28.3.2019 preferred by the D.I.O.S., Sultanpur to the Office of Chief Standing Counsel, Lucknow Bench. The aforesaid instruction letter dated 28.3.2019 categorically provides that the institution in question is duly recognized and aided institution up to the Intermediate and the said institution is duly governed by the Intermediate Education Act, 1921, Regulations under the Intermediate Education Act, 1921. The U.P. Secondary Education Service Selection Board Act, 1982, U.P. Secondary Education Service Commission Rules, 1983 and the U.P. High Schools and Intermediate Colleges (Payment of Salaries of the Teachers and other Employees) Act, 1971 besides the Reservations and Regulations, 1949. It is also indicated in the aforesaid letter that on account of retirement of one Sri Yogendra Narain Mishra who was serving on the post of Lecturer (Commerce) retired on 30.6.2011 the vacancy of the aforesaid post was created. There is no quarrel on the point that the aforesaid vacancy shall be filled up by the Selection Board in view of the Act, 1982 and Rules, 1983 (aforesaid). It has further been indicated that the aforesaid post of Lecturer (Commerce) was reserved for O.B.C. category vide Requisition/3273-76/2011-12 dt. 25.10.2011 of D.I.O.S., Sultanpur. It has further been submitted in the aforesaid letter that the committee of management has wrongly filled up the post of Lecturer (Commerce) by making advertisement on 15.9.2011 thereby appointing the petitioner on 29.10.2011 and permitting the petitioner to submit his joining on 1.11.2011.
Learned Additional Chief Standing Counsel has further submitted that the post of Assistant Teacher of Lecturer may not be filled up by adhoc appointment, inasmuch as, the post in question can only be filled up through Selection Board. Learned Additional Chief Standing Counsel has shown the requisition dated 25.10.2011 preferred by the D.I.O.S., Sultanpur to the Secretary, Selection Board to demonstrate that the post of Lecturer (Commerce) was to be filled up through OBC candidate.
Since Sri R.K.S. Suryavanshi, Advoate was also directed to produce the relevant record of the Selection Board, therefore, he has also produced the copy of the requisition letter dated 25.10.2011 sent by the D.I.O.S., Sultanpur wherein it has categorically been indicated that the post of Lecturer (Commerce) would be filled up amongst the backward class. Sri Suryavanshi has also produced the copy of the notification dated 6.10.2018 issued by the Secretary, Selection Board wherein it has been categorically indicated that in the institution in question the post of Lecturer is lying vacant in the category of OBC.
Heard learned counsel for the parties and perused the material available on record and also the material which has been provided by the learned Additional Chief Standing Counsel as well as counsel for the Selection Board.
This is a trite law that if the Selection Board selects any person for the post in question, the selected person has got right to be posted on the post in question. It is also settled position that even if any person is discharging his duties on adhoc basis for the post in question which should be filled up by the Selection Board then as soon as the selected candidate comes to join on the post in question right of adhoc appointee shall come to an end despite the fact that the said adhoc appointee has worked for substantially long period. The Hon'ble Apex Court in re: Shesh Mani Shukla vs District Inspector of Schools, Deoria and others reported in (2009) 15 Supreme Court Cases 436 vide para 19 has held as under:
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. (See Food Corpn. of India vs. Ashis Kumar Ganguly.) Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ or or in the nature of mandamus. (See State of M.P. vs. Sanjay Kumar Pathak.)"
The Hon'ble Apex Court in re: Guru Charan Singh vs. State of Uttar Pradesh and others reported in (2011) 13 Supreme Court Cases 37 has held in para 11 as under:
" We need not deal with these contentions of the counsel for the petitioner because we find from the paragraph 2.9 of the Counter Affidavit of respondent no.5 filed in this Court that as against the requisition of the Committee of the Institution, the Uttar Pradesh Secondary Education Services Selection Board after conducting selection has selected one Ambrish Kumar for the Institution and Ambrish Kumar had assumed his duty against the vacant post of Assistant Teacher on 14.10.2006. As the appointment of the petitioner to the post of Assistant Teacher in the Institution was made by the Committee of the Institution and approved by the District Inspector of Schools for the limited period up to the date of joining by a candidate duly selected by the Commission and such candidate duly selected by the Selection Board has already joined his duty on 14.10.2006, the petitioner's appointment, even if valid, has come to an end on 14.10.2006. We further find from a copy of the letter dated 26.07.2008 of the Principal of the Institution to the District Inspector of Schools annexed to the counter affidavit of respondent no. 5 as Annexure R-2 that the petitioner has drawn salary as an Assistant Teacher up to 14.10.2006 and thereafter. Hence, the question of granting any monetary relief to the petitioner up to 14.10.2006 also does not arise."
Considering the rival submissions of the learned counsel for the parties and perused the material available, I am of the considered view that as soon as the opposite party no. 6 has been selected by the Selection Board he has got every legal right to be posted on the selected post and the petitioner who was discharging duties on adhoc basis w.e.f. 1.11.2011 has got no right to discharge the duties on the post of Lecturer (Commerce). The record reveals that the post of Lecturer (Commerce) in the institution in question was reserved for the O.B.C. category and the opposite party no. 6 is a duly selected candidate from the Selection Board, therefore, he may not be restrained in discharging his duties on the post of Lecturer (Commerce) in the institution in question.
Accordingly, I do not find any infirmity, illegality or perversity in the order dated 2.2.2019 passed by the D.I.O.S., Sultanpur, Annexure no. 2 to the writ petition, therefore, the writ petition deserves to be dismissed and accordingly the writ petition is dismissed.
Since the writ petition has been dismissed, therefore, the D.I.O.S., Sultanpur is directed to get his order dated 2.2.2019 complied with promptness strictly in accordance with law.
No order as to costs.
Order Date :- 29.5.2019 Om [Rajesh Singh Chauhan, J.]