BRIJENDRA MANI TEWARI Vs. STATE OF U P

JUDGEMENT

(1.) B. K. Narayana, J. Heard Sri Hari Govind Singh Parihar learned counsel for the petitioner, learned Standing Counsel for the opposite parties no. 1, 2 and 3 and Sri H. S. Jain learned counsel appearing for the opposite party no. 4. Issue notice to the opposite parties no. 5 and 6 returnable at an early date. Steps be taken within a week. All the opposite parties are granted four weeks' time for filing counter affidavit. Rejoinder affidavit may be filed by the petitioner within two weeks thereafter. List immediately after expiry of the aforesaid period. By means of the the present writ petition, the petitioner has challenged the orders dated 23. 09. 2008 passed by the opposite party no. 4 and 29. 09. 2008 passed by the opposite party no. 3, by which the opposite party no. 6 who has been selected for appointment on the post of Lecturer (Maths) for another Institution in pursuant to the Advertisement No. 02/2001, has been directed to be adjusted against the post of Lecturer in Janta Inter College, Mau Aima, Allahabad on which the petitioner is working. Learned counsel for the petitioner submitted that the opposite party no. 6 could not be adjusted against the post on which the petitioner is working as the same was never notified or intimated to the Board. The learned counsel for the petitioner has also prayed for quashing of newly substituted Rule 13 (5) of the U. P. Secondary Education Service Selection Board Rules, 1998 which provides that 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 and upon 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 mainly on the ground that such allocation against the post which was never advertised amounts to clear infringement of Article 14 and 16 of the Constitution of India. In support of his arguments, learned counsel for the petitioner has invited the attention of this Court towards a decision rendered by a Division Bench of this Court in a case reported in 2006 (4) ESC 2786 (All) (DB); Satish Kumar vs. State of U. P. and others wherein two questions were framed for consideration, which are noted herein below:- 1. Whether an unadvertised vacancy can be filled up from amongst the candidates, who have been selected in the earlier selection?

(2.) WHETHER under U. P. Act No. 5 of 1982 or under U. P. Secondary Education Service Selection Board Rules, 1998, there is any authority vested with the U. P. Secondary Education Service Selection Board to direct for adjustment of candidates who have been selected but could not join for one reason or the other, to any other institution, vacancy whereof has been notified but not advertised? The aforesaid questions have been answered by the Division Bench of this Court in the following manner:- "an unadvertised vacancy cannot be filled up from amongst the candidates who has been selected in any previous selection; and to that extent we declare that the pronouncement of the learned Single Judge in the case of Savita Gupta vs. State of U. P. and others 2004 (2) UPLBEC 2379 does not lay down the law correctly and is hereby overruled". "the U. P. Secondary Education Services Selection Board constituted under the U. P. Act No. 5 of 1982 cannot, with the aid of the Government Order dated 12th March, 2001, order any adjustment in respect of a vacancy which has been intimated and notified but not advertised. " Sri H. S. Jain, learned counsel appearing for the opposite party no. 4 has submitted that the allocation of teachers against an unadvertised vacancy was held to be illegal by a Division Bench of this Court in the case of Satish Kumar (Supra) on the ground that there was no provision in the U. P. Secondary Education Services Selection Board Rules, 1998 providing for any such adjustment and now Rule 13 has been substituted by Notification No. 155/xv-12-2007-1604 (51)-2005, dated 23 January, 2007. Published in U. P. Gazette Extra Part 4 Section (ka) 23rd January, 2007 providing for such allocation by the Board. Learned counsel for the petitioner replying to the aforesaid argument of the learned counsel for the opposite parties submitted that even if it is assumed that Rule 13 (5) of the U. P. Secondary Education Services Selection Board, Rules, 1998 valid, the same cannot be said to be retrospective in operation. Keeping in view the facts and circumstances of the case as well as the arguments advanced on behalf of the learned counsel for the petitioner and the learned counsel for the opposite parties, I am of the view that the allocation of the opposite party no. 6 made by the opposite parties no. 3 and 4 against a vacancy, which was never intimated or notified to the Board, is against the settled law and accordingly, it is provided that the effect and operation of the impugned orders dated 29. 09. 2008 and 23. 09. 2008, passed by the opposite parties no. 3 and 4, as contained in Annexures-2 and 1 respectively to the writ petition, shall remain stayed till the next date of listing. .