RAKESH BHARDWAJ Vs. STATE OF UP

JUDGEMENT

(1.) In the district of Kanpur Nagar, there is recognized institution known as Sri Gangadeen Gauri Shankar Inter College, Kanpur Cantt. Kanpur. Said institution in question is governed by the provisions of U.P. Intermediate Education Act, 1921 and Regulations framed there under. Institution in question is in Grant-in-Aid list of the State Government and the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971 are fully applicable to the said institution. Selection and appointment, which is inclusive of promotion is to be made strictly in consonance with the provision of U.P. Secondary Education Services Selection Board Act, 1982 and U.P. Secondary Education Services Selection Board Rules, 1998, framed in exercise of power vested under Section 35 of U.P. Act No. V of 1982. In the institution concerned petitioner claims that he had been performing and discharging his duty as Assistant Teacher L.T. Grade. Petitioner has stated that Sri Har Narayan Vajpayee, Lecturer in the subject of Chemistry was promoted as Officiating Principal w.e.f. July, 2001. On account of this fact petitioner claims that he was accorded ad-hoc promotion as Lecturer in Chemistry and he had been teaching Class 11th and 12th Date of birth of Sri Har Narayan Vajpayee is 9.12.1943. Under Chapter-III Regulation 21 of U.P. Intermediate Education Act, 1921 Sri Har Narayan Vajpayee was to continue till he completed the age of 60 years. Here Sri Har Narayan Vajpayee was to complete his age of 60 years on 8.12.2003 and thereafter he was entitled for sessions benefit upto 30.6.2004. State Government took policy decision to increase age of superannuation from 60 to 62 years and necessary amendment was introduced on 4.2.2004 in Chapter-Ill Regulation 21 of U.P. Intermediate Education Act, 1921 by extending age of superannuation from 60 to 62 years and the net effect of the same was that age of superannuation of Sri Har Narayan Vajpayee was also got extended upto 8.12.2005 when he completed sixty two years of age and thereafter he was entitled for Session Benefit upto 30.6.2006. Earlier Managing Committee of the institution treating the age of superannuation as 8.12.2003 session benefit upto 30.6.2004 of Sri Har Narain Bajpayee, notified the vacancy to U.P. Secondary Education Services Selection Board, Allahabad and District Inspector of Schools, Kanpur Nagar on 25.6.2003 notified the said vacancy to the Selection Board and further thereafter vacancy in question had been advertised on 8.12.2004 in Daily "Dainik Jagaran" On 21.4.2005, District Inspector of Schools addressed letter to Secretary U.P. Secondary Education Service Selection Board in reference of letter dated 25.6.2003 that due to inadvertence, post of Lecturer in Chemistry has been notified, and the incumbent who has been sought to be adjusted, namely Manish Kumar cannot be adjusted, as post is substantively not vacant, as such said incumbent be adjusted some where else. On 25.11.2005 Management notified the vacancy to U.P. Secondary Education Service Selection Board, the vacancy which was to fall vacant on 30.6.2006, of Sri Har Narain Bajpayee, Lecturer in Chemistry. Pursuant to the selection proceeding on the basis of Advertisement dated 8.12.2004, selection Board prepared panel on 8.12.2005 and name of Km Poonam was recommended as Schedule Caste category candidate in the institution for the post of Lecturer in Chemistry. On 22.5.2006, D.I.O.S., notified the vacancy which had occurred on account of attaining age of superannuation of Sri Har Narain Bajpayee to U.P. Secondary Education Service Selection Board. Thereafter, Sri Har Narayan Bajapayee, who was functioning as Lecturer in Chemistry attained the age of superannuation on 30.6.2006 and on that very date U.P. Secondary Education Service Selection Board, addressed letter to District Inspector of Schools, Kanpur Nagar, giving therein reference of letter dated 23.6.2006, which was in reference of joining of Km. Poonam, and further mentioned that further proceedings, in respect of joining be kept in abeyance, and further information be send in respect of vacancy. District Inspector of Schools thereafter on 13.7.2005 sent letter informing Secretary, U.P. Secondary Education Service Selection Board, in respect of existing vacancies, and also gave reference of notification of vacancies made by Manager on 6.7.2005. Thereafter on 5.8.2006, Secretary, U.P. Secondary Education Service Selection Board, has issued communication cancelling the order dated 30.6.2006. Management in the meantime, issued appointment letter, and Km. Poonam claims to have joined the post as Lecturer in Chemistry.

(2.) After pleadings have been exchanged in the writ petition, same is being taken up for final hearing and disposal with the consent of the parties.

(3.) Sri P.K. Jain, learned Counsel for the petitioner contended with vehemence that in the present case vacancy in question has occurred on 30.6.2006 and same is liable to be filled up by way of promotion, as such by no stretch of imagination on the basis of the notification of the vacancy made on 25.6.2003 and advertisement dated 8.12.2004, any recommendation can be made on the post of Lecturer in Chemistry vacancy which had not even occurred and as such entire proceedings in respect of selection and appointment on the post of Lecturer in Chemistry of Km. Poonam, is void and without jurisdiction and as such writ petition deserves to be allowed.