Special Appeal dismissed. Court held appellant had no substantive right to appoint by transfer. Procedural defects in management requisition do not defeat senior lecturer's promotion rights, and such errors could have been cured by Inspector.
Special Appeal No. 540 of 2017 dismissed as bereft of merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 21
Case :- SPECIAL APPEAL No. - 540 of 2017
Appellant :- Kamlesh Pratap Singh Respondent :- State Of U.P. & 7 Others Counsel for Appellant :- Jitendra Pratap Singh,Shashi Nandan Counsel for Respondent :- C.S.C.,Ashok Khare,Ashok Kumar Dwivedi,Lokesh Kumar Dwivedi,Shiv Nath Singh
Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.
This appeal is before us to examine correctness of the judgment dated 22.09.2017 passed by learned Single Bench in Writ-A No. 56899 of 2015.
In brief, factual matrix of the case is that in the year 2009-10, on availability of one post of Principal, the Committee of Management of Janta Inter College, Rampur Karkhana, Deoria sent a requisition to Service Selection Board for filling up the vacancy aforesaid. The Board in turn sent name for appointment as Principal but that was assailed by way of filing a petition for writ by one Sri Hari Shankar Pandey on several counts including that he being the senior-most Lecturer and also being Officiating Principal deserves to be continue as Principal. On retirement of Shri Hari Shankar Pandey, respondent-petitioner being the senior-most Lecturer of the Institution was asked to function as Officiating Principal and his signatures were also provisionally approved on 04.10.2014. The Committee of Management of Janta Inter College also considered it appropriate to send requisition to fill up the post of Principal. However, during pendency of that, appellantrespondent, namely, Kamlesh Pratap Singh came to be transferred as Principal of the Institution. He was permitted to join on the post aforesaid on 20.06.2015.
Aggrieved by the action of Committee of Management, respondent-petitioner submitted a complaint to the Additional
Director, Secondary Education who in turn instituted an enquiry. While the enquiry aforesaid was in progress, the Joint Director, VIIth Region, Gorakhpur passed order dated 03.07.2015 and in pursuance of that, District Inspector of Schools verified the signatures of respondent no. 7. Being aggrieved by the same, a petition for writ was filed by the respondent-petitioner, i.e., Writ-A No. 41278 of 2015 that came to be disposed of on 05.08.2015 with a direction to the Additional Director of Secondary Education to consider and decide the dispute in light of the law settled by Full Bench of this Court in Prashant Kumar Katiyar Versus State of U.P. and others [2013 (1) ADJ 523] .
The Additional Director in compliance of the directions given by writ Court disposed of the dispute by arriving at the conclusion that though a request was sent to the District Inspector of Schools on 20.03.2014 but that was withdrawn on 28.06.2014 in light of proposed appointment of appellantrespondent as Principal by way of transfer. It was also mentioned in the order dated 23.09.2015 passed by Additional Director that Committee of Management in compliance of the order of transfer after getting the signatures verified allowed the appellant-respondent to continue as Principal and further that in pursuance of the requisition made, the vacancy was never advertised.
Being aggrieved by the order passed by the Additional Director and the order of appointment of appellant-respondent, the respondent-petitioner preferred a petition for writ that came to be accepted under the judgment impugned. Learned Single Bench while accepting the petition for writ arrived at the conclusion that in terms of the law settled by a Full Bench of this Court, delay in sending information/requisition to the Board and consequent delay in publication of any advertisement and holding of selection by Selection Board
would not create any right in favour of a person who seeks appointment on the post of Principal by way of transfer by ignoring right of the senior-most Lecturers already working with the Institution.
In appeal, the argument advanced by learned counsel for the appellant is that learned Single Bench failed to appreciate that no determination of vacancies as prescribed under Rule 11 of the U.P. Secondary Education Service Selection Board Rules, 1998 (hereinafter referred to as "Rules, 1998") was ever carried out by the Committee of Management of the Institution and, as such, the requisition sent was absolutely nonconsequential. It is further stated that recommendation made was absolutely erroneous being lacking necessary requisites including the names of the senior-most Lecturers. It is stated that Appendix "A" appended with the Rules, 1998 provides that where the post for which selection is to be made as of Principal, the name of two senior-most Teachers possessing requisite qualification for the post of Principal, in order of seniority and their educational qualification, teaching experience, administrative experience, if any, is required to be mentioned. In the requisition sent, no such details were prescribed. It is also asserted that requisition sent by the Institution is absolutely non-consequential being sent after the date prescribed in Rule 11 of the Rules, 1998.
On going through the facts averred in the pleadings and as unfolded by learned Single Bench in the judgment impugned, we do not find any merit with the arguments advanced.
At the threshold, we would like to state that Rule 11 of the Rules, 1998 provides procedure for determination and notification of vacancies. The Appendix "A" to the Rules, 1998 is also in consonance to the process given under the Rules, 1998. Pertinent to notice that sub-Rule (4) of Rule 11 of Rules, 1998 provides that where for any year of recruitment, the
Management does not notify the vacancies by the date specified in sub-Rule (2) or fails to notify them in accordance with the said sub-Rule, the Inspector shall on the basis of the record of his office, determined the vacancies in such Institution in accordance with sub-Section (1) of Section 10 and notify them to the Board in the manner and by the date referred to in the said sub-Rule. The vacancies to the Board under sub-Rule (4) shall be deemed to be notified by the Management of such Institution.
A complete reading of Rule 11 of Rules, 1998 indicates its procedural nature and further the steps those are required to be taken by the Inspector of Schools in the event of nondetermination of vacancies by the Management of the Institution.
In the case in hand, for the sake of argument, even if it is assumed that no requisition was sent by the Institution by determining the vacancies then it was open for the Inspector of Schools to determine the vacancies and to proceed in accordance with law. The District Inspector of Schools under the order passed by the Additional Director instead of adhering the procedure given decided to proceed to fill up the vacancy of Principal by appointing the incumbent by way of transfer. It is further relevant to state that the procedural provisions if their non-compliance does not create any substantive right in a third person then those cannot be permitted to adversely effect substantive rights of other persons. In the case in hand, respondent-petitioner had substantive right to be considered as Principal by way of promotion and that is sought to be abandoned on the count of some error in procedure. The error is also of the nature that could have been cured by the Inspector of Schools as per sub-Rule (4) of Rule 11 of the Rules, 1998.
Suffice to mention that the appellant-petitioner was having no
substantive right for appointment as Principal by way of transfer which, as as matter of fact, is an alternative mode for recruitment on the post of Principal.
While examining the facts of this case, learned Single Bench on going through the entire record noticed that, as a matter of fact, Management sent in quadruplicate requisition for filling up the vacancy of Principal in the prescribed format. The requisition made is absolutely in consonance to the provisions of Rule 11 of the Rules, 1998. The only deficiency shown is that in the format aforesaid, names of two senior-most Lecturers were not given with their necessary details. The absence of such details is not fatal to the extent of abandoning a substantive right otherwise vested with such senior-most Lecturer.
The factual as well as legal position noticed above, in quite unambiguous terms, establishes that denial from consideration for appointment as Principal by way of promotion to the respondent-petitioner was absolutely illegal and the appointment of appellant-petitioner by way of transfer too is bad. Learned Single Bench, as such, did not commit any error while accepting the petition for writ.
In view of whatever stated above, the appeal is bereft of merit, hence dismissed.
Order Date :- 9.8.2018 Shubham
(Chandra Dhari Singh, J.) (Govind Mathur, J.)
3 issues framed by the court
Whether an error in procedure regarding requisition format for Principal post can defeat the substantive right of senior-most lecturers.
Whether appointment by transfer can supersede promotion rights when procedural defects are curing.
Whether appeal is maintainable given the Single Bench decision on substantive rights.
Colour shows how this judgement treated each authority
Prashant Kumar Katiyar Versus State of U.P. and othersReferred¶8
Prashant Kumar Katiyar Versus State of U.P. and others [2013 (1) ADJ 523]
Kamlesh Pratap Singh
State Of U.P.
Govind Mathur
Chandra Dhari Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
