2009 Supreme(All) 3666

[2009(10) ADJ 585]
ALLAHABAD HIGH COURT
BEFORE : ARUN TANDON, J.
RAJA RAM, ETC. ....Petitioners
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc.Writ Petition No. 40377 and 61611 of 2008,
decided on 30th November, 2009)

Headnote:(A) Selection—Advertisement—Candidate selected in pursuance of any earlier advertisement cannot be adjusted against any vacancy subject-matter of subsequent advertisement, nor number of vacancies advertised can be said to be filled, or occupied on strength of such illegal adjustments—Mere selection confers no right—For saving Rule 13(5) of 1998 Rules from being declared ultra vires of Sections 10 and 11 read with Section 16 of 1982 Act and Article 14 of Constitution, it has necessarily to read provision of Rule 13(5) in harmony with said provision—And, it is held that Selection Board can recommend a selected candidate to another Institution only against vacancy subject-matter of same advertisement against which candidates have been selected—Board cannot be permitted to recommend a candidate to an institution vacancy whereof had been notified, but was not advertised/offered to candidates during interview. [U.P. Secondary Education Services Selection Board Rules, 1998—Rule 13(5)—Section 16—U.P. Secondary Education Services Selection Board Act, 1982]. [Paras 16, 25, 26, 32, 33 and 36]

       (B) Appointment—Transfer of a teacher against advertised vacancy—Two advertisements i.e. Advertisement No. 1 of 2004 and Advertisement No. 1 of 2005—Once process of selection by direct recruitment has begun by issuance of an advertisement inviting applications, same canot be filled by transfer—Thus, appointments made by transfer against an advertised vacancy of Advertisement No. 1 of 2005 is rendered illegal, and no consequence. [Paras 16 and 35]

       (C) Appointment—Compassionate appointment—Advertised posts of Asstt. teacher—Two advertisements i.e. Advertisement No. 1 of 2004 and Advertisement No. 1 of 2005—Vacancies were advertised as early as in year 2005—No compassionate appointment against a post can be resorted once vacancy has been requisitioned for direct recruitment and advertised by Selection Board. [Paras 16 and 36]

       (D) Absorption—Of Subject Experts against advertised vacancies—Amendment has been provided under Section 21-(E) which was added to the Act of 1982, vide U.P. Act No. 37 of 2006—Such amendment in Act, which is prospective in nature, will not in anyway effect the process of selection already initiated under Advertisement No. 1 of 2005, (i.e., subsequent to Advertisement No. 1 of 2004)—Scope of adjustment of Subject Experts against advertised vacancies of Advertisement No. 1 of 2005, is, therefore, held to be illegal—Only vacancies, which come into existence subsequent to introduction of Section 21(E) to Act of 1982 can be subject-matter of consideration for Subject Experts to be adjusted—Process of selection started under Advertisement No. 1 of 2005 has to be completed with reference to provisions as were applicable on the date process of selection was so initiated with publication of advertisement—Any subsequent amendments in statutory provisions will not effect the process so initiated. [Paras 16 and 37]

       (E) Vacancy—Direct recruitment—Earlier requisitioned for direct recruitment by Committee of Management—Whether could be filled by promotion after its advertisement by Selection Board—Issue as to whether a vacancy falls within quota for direct recruitment, or promotion, has to be determined with reference to dates of occurrence of vacancy—Since vacancy subject-matter of advertisement No. 1 of 2005 was requisitioned by Committee of Management for direct recruitment, it is to be presumed that same was within quota for direct recruitment, more so, when no teacher came forward to claim promotion against same by challenging advertisement—Committee of Management cannot subsequently fill such an advertised vacancy by promotions. [Paras 16, 39 and 40]

       (F) Vacancies—Advertised vacancies—Two advertisements, i.e. Advertisement No. 1 of 2004 and Advertisement No. 1 of 2005—Filling-up of advertised vacancies, subject-matter of Advertisement No. 1 of 2005 (a) by adjustment under Rule 13(5) of 1998 Rules of candidates selected in pursuance to earlier advertisement, (b) by transfer of candidates from other institutions against advertised vacancies, (c) by compassionate appointment, (d) by promotion, and (e) by absorption of Subject Experts under Section 21-E is patently illegal and in teeth of provisions of Act of 1982 and Rules framed thereunder—All such kinds of appointments against advertised vacancies are illegal and appropriate action be taken by authorities accordingly—Selection Board shall complete process of selection in respect of all advertised vacancies minus 57 posts which were wrongly advertised by inviting necessary number candidates with reference to their merits in written examination and quality point marks for interview and by declaring of final results thereafter—Thus, petitions allowed. [Paras 16, 43, 44 and 45]

       Result; Petition Allowed.