DURGA PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the parties. This writ petition was earlier dismissed on 05.08.2008, however the said order was set aside in Special Appeal and the matter was remanded to the Single Judge to hear and decide the writ petition again. The Special Appeal was numbered as Special Appeal No.958 of 2008 and was allowed and remanded on 13.08.2008. The petitioner at present is one of the two senior most teachers of Maharaja Agarsen Balika Inter College, Deoria. Respondent No.6, Smt. Rita Srivastava has been selected as principal of the college in question by U.P. Secondary Education Services Selection Board. Learned counsel for the Selection Board admits that there is a deficiency in the selection of Respondent No.6 in as much as two senior most lecturers of the college in question were not called for interview. However, when interview was taken, petitioner was not one of the two senior most lecturers of the college in question. The question is as to what would be the effect upon the selection of respondent No.6 of this irregularity or illegality. In this writ petition, which was filed on 01.08.2008, in the array of the parties, petitioner described herself as second senior most lecturer and officiating principal. The contention of learned counsel for the petitioner is that as the selection of respondent No.6 is illegal for the reason that at the time of selection, the two senior most lecturers of that time (not including the petitioner) were not called for interview, hence petitioner is entitled to continue as officiating principal and she is also entitled to be considered for regular appointment/ regularised as principal. It may be mentioned that the matter of regularising ad hoc principals is under consideration of the government. The selection of respondent No.6 is alleged to have taken place in pursuance of advertisement No.1 of 2000. Initially, appointment was stayed in a writ petition, which had been filed by the senior most teacher of that time. Ultimately, matter was decided in favour of that lecturer, who was senior most and was officiating as principal. However, the said judgment and several other similar judgments were set aside by the Supreme Court in AIR 2008 SCW 6672 : JT 2008 (8) SC 381 "Balbir Kaur Vs. U.P. Secondary Education Services Selection Board, Allahabad and others." In Special Appeal No.958 of 2008, all these facts were noticed. Thereafter, it was observed as follows: "From the contentions so raised before us, we find that there is a dispute as to whether selection for the post of principal of Maharaja Agarsen Balika Inter College, Deoria had taken place in terms of the advertisement No.1 of 2000 or not." Petitioner relies upon a letter dated 26.05.2001 issued by the Commission to the effect that in view of Special Appeal No.281 of 2001 (filed by the earlier acting principal) selection for the post of principal of the college in question had been postponed. Selected panel was notified on 25.08.2003. Thereafter, on 24.09.2003, Secretary of the Selection Board wrote a letter indicating that selected panel notified on 25.08.2003 for the college in question was directed to be kept in abeyance. Counter affidavit by the Selection Board has been filed on 19.09.2008. In Para-10 of the counter affidavit, it has been stated that one Smt. Kamla Srivastava was at Serial No.1 in the panel of the Principals for the college in question, however she had also applied against the subsequent advertisement (No.1 of 2002) and she had been selected at that occasion also for another college and she joined at that college, hence respondent No.6 was directed to join at the college in question. In the counter affidavit, it has categorically been stated that interview was in fact held for the post of principal in the college in question on 01.06.2001. It is also stated that two senior most lecturers of the college in question at the relevant time were informed by the D.I.O.S. to appear but they did not appear. In this connection, as Annexure CA-4, copy of attendance register of those applicants, who appeared for interview on 01.06.2001 for the post of principal in the college in question, has been annexed. Apart from respondent No.6, three other persons appeared, i.e. Smt. Saroj Singh, Smt. Kamla Srivastava and Smt. Darakshan Siddiqui. Two senior most teachers of the college in question did not appear. It has further been stated that after the decision of the Supreme Court in Balbir Kaur's case on 16.05.2008, the candidates earlier selected for the post of principal were sent for joining as principal at the respective colleges. Prior to that all the selections had been cancelled by this Court, hence there was no question of joining of any selected principal. Annexure-1 to the writ petition is copy of letter dated 26.05.2001 sent by the Secretary of the Selection Board to two senior most teachers of the college in question including Smt. Uma Gupta informing them that interview, which was scheduled to be held on 01.06.2001 (for the post of principal of the college in question), had been postponed. Respondent No.6 in her counter affidavit has clearly stated that she did not receive any letter of postponement of interview and she in fact participated in the interview on 01.06.2001 and that letter dated 26.05.2001 regarding postponement of interview issued to two senior most teachers of the college in question was sent by Deputy Secretary, however it has wrongly been shown to have been sent by the Secretary and that Deputy Secretary had no right to issue such letter; and that she received letter on 08.05.2001 to appear in the interview on 01.06.2001. There was no interim order staying the selection process. From the above, two things are quite clear. Firstly, interview was in fact held on 01.06.2001 for the post of principal of the college in question and four independent candidates including respondent No.6 participated in the selection process and appeared before the interview board. The second thing, which is clear, is that two senior most teachers of that time were issued letters on 26.05.2001 intimating them that interview for the post of the principal in the college in question had been postponed. In my opinion, even though the letter dated 26.05.2001 was wrongly issued, however the selection could be challenged on the ground of absence of opportunity to participate to two senior most teachers only by those two teachers, who were senior most at that time. They are no more teachers. They have retired. Accordingly, petitioner, who was at Serial No.4 at that time, has no right to challenge. However, Commission is censured for the action which it took (wrongly informing two senior most teachers of the college in question about postponement of interview). In future it ought to be more careful. Writ petition is dismissed.