Wednesday, March 29, 2023

Allahabad High Court sets aside appointment of principals in govt inter colleges as per 2013 ad

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The Lucknow Bench of the Allahabad High Court has set aside the appointment of principals in government inter colleges on the basis of advertisements issued in 2013.

The Court ordered the recruitment board to complete the selection process by issuing a new advertisement while describing these appointments made in 2022 against legal provisions.

A single-judge bench of Justice Pankaj Bhatia passed this order while hearing a petition filed by Committee Of Management Intermediate College Natauli through Manager and Another.

The bunch of petitions had been filed raising various grounds to the appointments made in terms of the Advertisement No.03 of 2013 published by the respondent no 2 for filling up the posts of Principals in the recognized Intermediate Colleges and the High Schools recognized under the provisions of The UP Intermediate Education Act, 1921 and in terms of the powers conferred upon the Board by virtue of The Uttar Pradesh Secondary Education (Services Selection Boards) Act, 1982 read with the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998.

In this matter, in the various writ petitions, there are numerable grounds of challenge to the selections made, however, there is one common thread running across all the writ petitions being the filling up the vacancies initiated by the Advertisement No 03 of 2013 and culminating in the appointments made in 2022 after about 9 years is itself arbitrary and violative of Articles 14 and 16 of the Constitution of India.

The petitioner in the said writ petition claims to be appointed in the institution known as Rajarshi Tandon Inter College, Ram Nagar, Athgawan, District Pratapgarh which is a recognized institution under the provisions of UP Intermediate Education Act and drawn salary on the post of teacher. The respondent no 2 issued an Advertisement No 03 of 2013 intending to fill up the post of principal in the added intermediate colleges.

In terms of the said advertisement, applications were invited from eligible candidates upto 31.01.2014. It is informed that the said date was subsequently extended to February 2014.

It is stated that despite issuing an advertisement no steps were being taken by respondent no 2 and suddenly in 2022, a decision was taken to call for two senior most teachers to fill their details on the online portal. After 10.01.2022, the manner in filling up the form etc was also notified through an advertisement.

It is claimed by some of the petitioners that the petitioners names were sent by the Committee of Management, and the petitioners were called for interview, however, they were denied the permission to undergo the interview which led to the filing of the writ petition.

In the light of the said liberty and the observations made by the High Court in the judgment dated 25.02.2022, the petitioners have filed the petitions challenging the advertisement itself on various grounds including the ground of inordinate delay in making appointments after issuance of advertisement.

The submission of Sharad Pathak, the counsel for the petitioners, is based upon the interpretation of the provisions of the UP Secondary Education (Services Selection Board) Act, 1982 and the Rules framed in pursuance to Section 35 of the 1982 Act known as ‘The Uttar Pradesh Secondary Education Services Selection Board Rules, 1998’.

The Counsel for the petitioners takes the Court through the provisions of the 1982 Act particularly Sections 2(a), 2(l), 10, 11, 12, 16 of the 1982 Act. He also draws the court’s attention to the Rules 10, 11 and 12 framed by virtue of powers conferred under Section 35 of the Act.

The first submission of the Counsel for the petitioners is that delaying the appointment in pursuance to the advertisement for the period of more than 9 years itself is fatal to the entire selection process and is contrary to the mandate of the Act for which the Act was enacted and is violative of Articles 14 and 16 of the Constitution of India.

The Counsel for the petitioners next submitted that even otherwise the mandatory provisions contained in Rules 11 and 12 particularly Rules 12(6) and 12(8) have not been followed while making the selections in pursuance to the advertisement. He thus argues that the advertisement and the selections made in pursuance thereof are liable to be quashed.

The Court said admittedly the advertisement was issued in 2013, that being a step taken by the Board in terms of Rule 12 after the notification of vacancies under Section 10 of the 1982 Act. For no good reasons, the Board did not take any steps which they were required to do under Section 11 of the 1982 Act and continued to wait for about 9 years for holding the examination. The defence taken for the delay as argued by Suryavanshi is that certain litigation from the recruitment proposed by the earlier Advertisement No 01 of 2011 were pending, as such, no steps were taken by the Board for selecting the candidates in terms of the mandate of clause upon the particular Board by virtue of Section 11 of the 1982 Act or the Rules 12 of the 1998 Rules, merits rejection as being wholly arbitrary, more so, as there was no order by any court in respect of appointments to be made under Advertisement No 03 of 2013.

The Court cannot lose sight of the facts that there is no defence taken by the State or the Board that there was any interim order passed by any Court of law preventing the Board from taking the steps under Section 11 for holding the examination or for finalizing the select list in terms of mandate cast under Rule 11.

In this case, the judgments cited by the Counsel for the respondents could not be of any help as the cause of action giving rise to the petitioners to approach the Court flew from the action of the Board of inviting the list of two senior most teachers in the year 2022 itself and the Court holding them to be eligible for consideration in the case of Vivek Kumar Upadhyay (supra) and giving them liberty to challenge on limited ground of inordinate delay. The other judgments cited by the Counsel for the respondents pertain to the requirement of qualification at the time of issuance of advertisement which issue has attained finality.

It is well settled that the requirement of eligibility is to be satisfied as on the cut off date prescribed in the advertisement and subsequently acquired qualification would not make a person eligible, however, in the case, we are concerned with the delay in the process of recruitment and whether the said delay would satisfy the test of Articles 14 and 16 of the Constitution of India. It is relevant to note that the Court had entertained writ petitions arising out of the same advertisement in Brij Pal Singh vs U.P Secondary Education Service Selection Board wherein this Court had granted an interim order, however, as I am deciding the entire writ petitions, the interim order would not have any effect on the decision.

The Court held iIn the light of the arguments raised at the bar, it stands established that the Board has clearly restricted the pool of available candidates available for selection and has not followed the mandate as prescribed under Section 11 of the 1982 Act of conducting the written examination as soon as they are notified. The expression “as soon as” cannot be interpreted to mean that the action is taken after nine years, although no time limit is fixed, the phrase “as soon as” has to be interpreted to be within a reasonable time in the context of recruitment to be made, the year of recruitment and the intent for which the advertisement is issued.Though the above mentioned observations were made in the context of the interpretation of the Article 22, the definition of the phrase “as soon as may be” i.e within the time which is reasonably requisite would apply with full vigour to the interpretation of Section 11(1) of the 1982 Act.

The Board further erred in calling for the names of two senior most teachers in the year 2022 despite that they did not senior most as per the cut off date prescribed in the advertisement, thus, the Board changed the rules midway which is not permissible and on that count also, the Board was at error in calling for the said names which fact also gets fortify in the case of Vivek Kumar Upadhyay (supra).

The Board, I have no hesitation in holding, has failed on all the said fronts and thus on all the grounds as noted above, I have no hesitation in holding that the action of the Board in making the recruitment after nine years is violative of Article 14 of the Constitution of India.

The selections so made have clearly deprived the eligible candidates (two senior most teachers) of their rights under Rule 12(6) of the 1998 Rules and also the candidates who acquired qualifications after 2014 as they are deprived of being considered only on account of delay by the Board. The rights of the petitioners have also been violated, as the appointment through the direct recruitment is indirectly an avenue of promotion available to the senior most teachers which is otherwise not available in terms of Rule 10 of 1998 Rules. The entire process of selection is also bad as the pool from which the selections are to be made by the Board has got shrunk only on account of inordinate delay in completing the process of appointment and has thus resulted in violation of Article 16 of the Constitution of India, the Court observed.

“Thus for all the reasons recorded above, all the appointments made by the Board in pursuance to the Advertisement No 03 of 2013 are set aside as being violative of Articles 14 and 16 of the Constitution of India. The Board shall now take steps for recruitment by issuing fresh advertisements with all expeditions strictly in accordance with law.

Till such steps as directed are taken by the Board, the arrangement as provided in the 1982 Act particularly Section 18 shall continue to govern the recruitment to the posts of Principals and the Headmasters,” the order reads.

In view of the above, the Court allowed the petitions.

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