With the consent of the parties, this writ petition is being disposed of finally.
The short controversy involved in this writ petition is that as to whether the State has power to invoke Rule 13(5) of the U.P. Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as the 'Rules 1998') to appoint a person by transferring him on a post to which he is not eligible to hold under the Rules. In order to appreciate this controversy following facts are required to be noticed.
It appears that the respondent no. 5 was appointed as a Lecturer in Civics. In pursuance of the advertisement notice issued for the post of Lecturer in Civics, the respondent no. 5 applied for the said post and was selected in an Institution other than the Institution namely Arya Kanya Girls Inter College, Govind Nagar. It so appears that due to the non-availability of the post the respondent no. 5 could not be adjusted as a result of which an order was passed on 17.5.2003 adjusting her in the present institution as a Lecturer in Civics. The adjustment order of the petitioner was challenged by one Smt. Saroj Awasthi in Writ Petition No. 32326 of 2003. The principal plea taken by Smt. Saroj Awasthi in the writ petition was that the respondent no. 5 has been appointed against the post of Lecturer in Civics which was never advertised nor was notified to the Commission by the Management. Relying upon a Division Bench Judgment of this Court rendered in Satish Kumar Vs. State of U.P. and others, 2006(4) ESC 2786, the learned Single Judge quashed the order dated 17.5.2003 and consequently, the order of adjustment of the respondent no. 5 in the said Institution was set aside. The Management contended before the court that they be given the option to adjust the respondent no. 5 against any different post. No direction was issued by the Court in this behalf leaving the matter to be decided by the Management.
After the order of adjustment was set aside the Regional Director issued direction to the Managing Committee to adjust the petitioner against any vacant post. In pursuance to that direction, the Management issued an order on 6.5.2008 adjusting the respondent no. 5 against the post of Lecturer in Hind with effect from 20.11.2007. This order is subject matter of challenge in this writ petition.
The case of the petitioner is that petitioner has been appointed as an Assistant Teacher in L.T. Grade which fell vacant due to death of one Kumar Lajwanti on 1.12.1990 and her appointment was accorded approval, vide order dated 29.8.1991 and subsequently her services have been approved by the Deputy Director of Education, vide order dated 21.10.1994 under Section 33-B of the Commission Act. She was promoted to the post of Lecture in Education on 4.11.2003. Her claim is that on account of adjustment of the respondent no. 5 as a Lecturer in Hindi in the Institution, she will rank junior to respondent no. 5 which will come in the way of her promotion to the higher post. This is why the petitioner has questioned the order of adjustment of the respondent no. 5 in the Institution against the post of Lecturer in Hindi.
On the other hand the stand of the respondent is that she was appointed as a lecturer in Civics and by invoking Rule 13(5) of 1998 Rules, she was adjusted in the Institution against the post of Lecturer in Hind, vide order dated 17.5.2003. However, this adjustment order dated 17.5.2003 was set aside by this Court in the Writ Petition No. 32326 of 2003. The other stand of the respondent no. 5 is that for purposes of withdrawal of the salary, she was allowed to work against the post of Lecturer in Hindi. It is further contended that the petitioner has no cause to come before this Court as seniority is to be determined from the date of first appointment and there is no dispute that the respondent no. 5 is senior to the petitioner as her selection/appointment has been made prior to the appointment of the petitioner as a Lecturer. The other ground taken by the respondent is that petitioner has an alternative remedy of filing appeal against this order which she has not been availed. It is further stated that the petitioner has been adjusted against the post of Lecturer in Civics with effect from 1.7.2008 on account of the vacancy which has occurred in the Institution.
I have heard learned counsel for the parties and perused the record.
The facts in this case are not in dispute that appointment of the respondent no. 5 in the Institution was on account of invoking Rule 13(5) of the Rules of 1995. It is also not disputed that the District Inspector of Schools has power to recommend the adjustment of a candidate against any other vacany notified by the Board in any other Institution as such on the receipt of the recommendation of the District Inspector of Schools, the Committee of Management has taken decision to accommodate respondent no. 5 against another vacancy notified by the Board on 17.5.2003. The adjustment order of the respondent no. 5 issued on 17.5.2003 was set aside by this Court in Writ Petition No. 32326. The respondents, vide its communication dated 8.2.2008, directed the Management to adjust the respondent no. 5 in the Institution against any vacancy and in pursuance of this, the order was passed by the Management appointing the respondent no. 5 against the available vacancy of Lecturer in Hindi.
Now, the question which arises for consideration in this writ petition is as to whether a person can be appointed by invoking Rule 13(5) in any other Institution against a post which he is not eligible to hold. In order to appreciate this controversy it is important to take note of scheme of the 1998 Rules relating to the selection and appointment of Lecturers in the said Institution, Chapter III of the 1998 Rules provides procedure for recruitment on the post of Headmaster, Principal and Teachers. For the purpose of Lecturer Rule 11 (2)(a) empowers the Management to determine the vacancies for each category of post to be filled in by direct recruitment including the vacancies which are likely to arise due to retirement of the last day of the year of recruitment and on receipt of such information Inspector, after verification from the record, shall prepare consolidated statement of vacancies of the district subject-wise in respect of the vacancies of lecturer grade, and group-wise in respect of vacancies of trained graduates grade. The vacancies are required to be notified subject-wise and, accordingly, procedure for making appointment is to be initiated.
A person seeking appointment as a Lecturer must be possessed of qualification specified in Regulation 1 of Chapter II of the Regulations under the Intermediate Education Act, 1921. A person who seeks appointment against the post of Lecturer should have qualification in the subject while such appointment is sought. The emphasis laid down by 1998 Rules is that appointments are required to be made subject wise and the person, who is in possession of academic qualification of such subject, would be eligible to seek appointment on the said post.
After the determination of the vacancies by the Management, Rule 12 provides for procedure for selection. When the Selection process is concluded, Rule 13 provides that procedure for intimation of names of selected candidates. Sub rule (5) of Rule 13 provides 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 recommendation of the District Inspector of School the Board shall allocate such candidate to another Institution in a vacancy notified to the Board.
In view of the above, the Rule 13(5) has following components:-
(a) In case a person, who has been selected and appointed, could not join due to the non-availability of vacancies or for any other reason;
(b) Recommendations is to be made by the District Inspector of School to the Board for adjustment of the said candidate against any other vacancy notified to the Board in any other Institution; and
(c) That the Board shall adjust such person to another Institution in a vacancy notified to the Board by Management.
The power of the Board to order adjustment, would be dependent upon the fact that the vacancy against which a person has to be adjusted must have been notified to the Board by the Management.
The other question set up by the petitioner is that whether the Board can adjust a person against a vacancy which has not been notified to the Board by the Management and said vacancy relates to a different subject other than the one held by the said person. From the scheme of the Act relating to the selection of a Lecturer it clearly emerges that a person who has been appointed against a post which he is qualified to hold under Section 5 of the Act, can be adjusted on the said vacancy. A person who is not qualified to hold the post against which he is adjusted cannot be appointed by invoking Rule 13(5). In my opinion, this is so because a person who has been appointed as a Lecturer in a particular subject has to impart education in that subject. Unless and until there is vacancy available where he can be adjusted, his appointment on any other post, which is available in the Institution, cannot be permitted. The power to pass an order under Section 13(5) impinges on a fact that by adjustment a person can be appointed in any other Institution on a post which he is qualified to hold under the Rules. If any other interpretation is placed on this Rule, it will have dangerous consequences on the functioning of the Institution meaning thereby if a person, who could not be appointed, is adjusted on a post in the Institution which he is not qualified to hold, he would not be in a position to impart education in the Institution. Therefore, I am of the view that power of adjustment under Rule 13(5) can be made only against a post which the incumbent is qualified to hold under the Rules.
The earlier order of the adjustment of the respondent no. 5 was set aside by this Court which has assumed finality as the said order has not been questioned in any other higher court. Subsequent order of her adjustment against a vacant post of Lecturer in Hindi has been passed by the Regional Joint Director who is not competent to pass such order as it is only Board who is competent to pass such order. The District Inspector of Schools can only recommend to the Board for adjustment of such candidate against any other vacancy in any other Institution. Admittedly, there is no order of adjustment passed by the Board in the present case, therefore, the order passed by the Joint Director of Education is without jurisdiction and is liable to be quashed.
Other contention of the learned counsel for the respondent no. 5 that there is alternative remedy of filing appeal has to be examined in the context of the findings recorded by the Court. It is settled law that alternative remedy is not a bar to file writ petition when an order has been passed by authority lacking jurisdiction. Adjustment order has been passed on District Inspector of Schools who is not competent to do so.
Lastly, it may be noticed that the Institution had not notified the vacancy to the Board against which the respondent no. 5 has been adjusted. I thus find that the adjustment of the respondent no. 5 in the Institution is in violation of the Rules which is liable to be set aside.
At this stage, it is contended by the learned counsel for the respondents that the respondent no. 5 has been working since 2003 in the Institution by virtue of this order her appointment shall be effected for no fault of her. In view of this, I direct that the respondent no. 5 shall make proper representation to the District Inspector of Schools for redressal of his grievances and the District Inspector of Schools shall consider her representation sympathetically keeping in view the fact that she has been working for the last more than nine year and pass appropriate order within a period of three weeks. It is contended by the learned counsel for the respondents that she has been adjusted against the post of Lecturer (Civics) on 1.7.2008. The respondent no. 5 is allowed to continue on the post, however, she will not claim seniority over the petitioner in view of the fact that her appointment by way of adjustment has been set aside by this Court.
With the aforesaid observations, the writ petition is allowed.
Order Date :- 23.8.2012 Ram Murti