Dismissed

Mashkoor Hasan v. State of U.P. and 6 Others

Allahabad HC2 Feb 2022SPLAD/718/2021

Case brief

AI extract

What is this about?

In this intra-court appeal, the appellant challenged an interim order staying his appointment as Principal of a college, claiming his selection from a 2003 waiting list should be honored after the top candidates retired or left service. The High Court dismissed the appeal, holding the post was already filled when the first candidate joined and that the appellant's claim was belated.

What the court decided

AI extract

Mashkoor Hasan Vs State of U.P. and 6 Others — Pension and Retirement Benefits | Allahabad HC (2022)

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Chief Justice's Court Serial No. 26

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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

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SPECIAL APPEAL DEFECTIVE No. - 718 of 2021

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(Arising out of Writ -A No. 9776 of 2021) Pronounced on: February 02, 2022

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Mashkoor Hasan

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...Appellant

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Through:- Mr. R.K. Ojha, Senior Advocate assisted by Mr. S.B. Singh, Advocate

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v/s

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State of U.P. and others

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…Respondents Through:- Mr. A.K. Roy, Additional Chief Standing Counsel for respondent Nos. 1 to 3 and Mr. Arvind Kumar Pandey, Advocate for respondent No.7

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CORAM: HON'BLE RAJESH BINDAL, CHIEF JUSTICE HON'BLE PIYUSH AGRAWAL, JUDGE

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ORDER

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RAJESH BINDAL, C.J.

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The present intra-court appeal has been filed impugning the interim order dated August 11, 2021 passed by learned Single Judge of this Court in a writ petition filed by respondent No.7.

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Mr. Arvind Kumar Pandey, learned counsel appearing for respondent No.7 raised a preliminary objection regarding maintainability of the present appeal against the interim order passed by learned Single Judge. In support of his arguments, he relied upon a Division Bench judgment of this Court in Special Appeal No. 1115 of 2019 (Har Nath Singh Vs. State of U.P. and others) , dated November 1, 2019.

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Mr. Radha Kant Ojha, learned Senior Counsel appearing for the appellant submitted that an advertisement was issued for selection and appointment to the post of Principal in various institutions including Rani Avanti Bai Inter College, Marhara, District Etah (hereinafter referred to as the ‘College’) in the year 2002. Select list was notified on September 29, 2003. So far as the select list of the College is concerned, Dr. Dinesh Vashishth was at Sr. No.1 whereas Sudhir Kumar Gupta was at Sr. No. 2 and the appellant was at Sr. No. 3 in the merit list.

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A writ petition was filed by Sudhir Kumar Gupta, the candidate at Sr. No.2 in the merit list, with reference to the said selection and appointment, bearing Writ-A No. 45747 of 2008 (Sudhir Kumar Gupta Vs. State of U.P. and others) . In the said writ petition, vide order dated September 3, 2008, operation of the orders impugned therein dated July 31, 2008 and August 12, 2008, was stayed. The said order was challenged by Dr. Dinesh Vashishth by filing Special Appeal No. 1282 of 2008 (Dr. Dinesh Vashishth Vs. State of U.P. and others) , which was allowed on September 25, 2008. While setting aside the order dated September 3, 2008 passed by learned Single Judge, a request was made to the learned Single Judge for deciding the writ petition expeditiously. The aforesaid writ petition is stated to be still pending.

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The learned Senior Counsel further submitted that Dr. Dinesh Vashishth, who was at Sr. No. 1 in the merit list has since retired after attaining the age of superannuation, he is no more a candidate. The candidate at Sr. No. 2 in the merit list namely, Sudhir Kumar Gupta has also left service and hence no more interested to be appointed as Principal of the College. Hence, the appellant was the only candidate available from the select list for being offered appointment as Principal of the College. As his claim was not being

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considered, he filed Writ-A No. 8770 of 2020 before this Court. The said writ petition was disposed of on November 11, 2020 with a direction to the Joint Director of Education, Aligarh Region, Aligarh to consider and decide the representation filed by the appellant. Pursuant to the aforesaid order, the claim of the appellant was considered and vide order dated June 26, 2021, a direction was issued for appointment of the appellant as Principal of the College. As far as competence of the Joint Director of Education to direct for appointment of the appellant as Principal is concerned, reference was made to Rule 13(4) of the Uttar Pradesh Secondary Education Services Selection Board Rules, 1998 (hereinafter referred to as ‘the Rules’). It was further argued that in the Rules, there is no time limit prescribed for the life of a select list. However, in the case in hand, the same is still alive, for the reason that the Division Bench of this Court while disposing of Special Appeal No. 1282 of 2008 filed by Dr. Dinesh Vashishth, had directed that the life of the select list would continue till the decision of the writ petition by the learned Single Judge. As the writ petition is still pending, the select list is valid. In pursuance of the aforesaid order passed by the Joint Director of Education, an appointment letter was issued in favour of the appellant on July 26, 2021. He joined service and his signatures were also attested. With the passing of the impugned interim order, prejudice has been caused to the appellant as he has been deprived of to serve as Principal of the College, though validly selected.

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In response to the arguments raised by learned counsel for respondent No.7 regarding maintainability of the present appeal while referring to a Full Bench judgment of this Court in Ashutosh Shrotriya and others Vs. Vice-Chancellor, Dr. B.R. Ambedkar University and others, 2015 (8) ADJ 248 , it was submitted by the learned Senior Counsel that the interim order in the case in hand being

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in the nature of final order, intra-court appeal is maintainable. Prayer for setting aside the aforesaid order has also been made so as to enable the appellant to continue to serve as Principal of the College.

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In response, learned counsel for respondent No.7/writ petitioner submitted that, undisputedly, the select list, on the basis of which the appellant is seeking appointment, was notified on September 29, 2003. The appellant was at Sr. No. 3 in the merit list. He was never a party in any litigation pending before the Court as it was a lis between the candidates at Sr. Nos. 1 and 2, which is still pending in this Court. Though the litigation was pending, still, undisputedly, the candidate at Sr. No. 1 in the merit list namely Dr. Dinesh Vashishth was issued appointment letter on July 16, 2008 and he had even submitted his joining on July 19, 2008. As a consequence, the post for which the selection was carried out, stood filled up and there was no question of operation of any waiting list even if the select list can be said to be still alive, though the same had outlived its life, as far as the appellant is concerned. The observation made by the Division Bench of this Court while deciding Special Appeal No. 1282 of 2008 was only with reference to a litigation between the candidates at Sr. Nos. 1 and 2 in the merit list, it was not an order in rem rather in personam.

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The Joint Director of Education, even after a direction was issued by this Court for consideration of the representation filed by the appellant, did not have the jurisdiction to direct for appointment of the appellant as the same is contrary to law laid down by this Court in Chandresh Nath Singh Baghel Vs. Bhagwan Singh Sisodia and others, 2008 (1) ESC 428 (All) , as the post in question stood already filled up with reference to the advertisement issued. In case the appointed candidate had left service thereafter, no person from the waiting list could be offered appointment and that too about

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18 years after the selection process was carried out. The order passed by the Joint Director of Education being totally illegal, the same has rightly been stayed by learned Single Judge.

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Learned counsel for the State submitted that the candidate at Sr. No. 1 in the merit list namely, Dr. Dinesh Vashishth was issued appointment letter on July 16, 2008 and he joined as Principal of the College on July 19, 2008. However, in the year 2011, he left the job and had gone back to his parent institution, where he was working prior to his appointment and joining as Principal of the College. He retired on July 31, 2020 after attaining the age of superannuation.

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Learned counsel for the appellant and the State do not dispute the proposition of law that after a candidate from the select list joins service, the selection process comes to an end and the waiting list cannot be acted upon as the post stands filled up.

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Heard learned counsel for the parties and perused the documents available on record.

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Certain basic facts, which are not in dispute, are that an advertisement was issued for selection and appointment on the post of Principal of the College in the year 2002. The select list was notified on September 29, 2003 in the following order of merit:

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Dr. Dinesh Vashishth

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Sudhir Kumar Gupta

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Mashkoor Hasan

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As is evident from the select list, the appellant was at Sr. No. 3 in the merit list. From the order dated September 3, 2008 passed by learned Single Judge in Writ-A No. 45747 of 2008 filed by Sudhir Kumar Gupta, the candidate at Sr. No.2 in the merit list, it is evident that there was some litigation pending in the Court with reference to the selection in question. Finally, it was upheld by Hon’ble Supreme

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Court in the year 2008. It was a dispute between the candidates at Sr. Nos. 1 and 2 in the merit list namely, Dr. Dinesh Vashishth and Sudhir Kumar Gupta. Vide order dated September 3, 2008, the learned Single Judge of this Court had stayed operation of the orders impugned therein, dated July 31, 2008 and August 12, 2008. In an appeal filed against the aforesaid order by Dr. Dinesh Vashishth, the aforesaid order passed by learned Single Judge was set aside on September 25, 2008 with a request to the learned Single Judge to decide the writ petition expeditiously. It was observed in the aforesaid order that the life of the select list would continue till the decision of the writ petition.

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Further, the undisputed facts which emerge from the documents available on record are that in pursuance of the selection process, the candidate at Sr. No. 1 in the merit list namely, Dr. Dinesh Vashishth was issued appointment letter on July 16, 2008. In pursuance thereto, he submitted his joining report and was permitted to join as Principal of the College on July 19, 2008. He continued to work as such till the year 2011, as submitted by learned counsel for the State. There is no quarrel with the proposition of law that with the joining of a candidate in the select list, the process of selection is complete and the waiting list cannot be acted upon. Even if, for the time being, we do not opine on the issue regarding life of a select list herein, no rules were cited to show about the validity of a select list. Only reference was made to the observation made by the Division Bench of this Court in Special Appeal No. 1282 of 2008, wherein it was recorded that the select list would remain valid till the decision of the writ petition filed by the Sudhir Kumar Gupta, who was at Sr. No.2 in the merit list questioning the appointment of Dr. Dinesh Vashishth who was at Sr. No. 1 in the merit list. The present appellant was nowhere in the picture. The aforesaid order could have relevance

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to the claim of Sudhir Kumar Gupta, for appointment as Principal and not for any other candidate.

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Even otherwise, in the case in hand, the select list was notified on September 29, 2003 and appointment on the post was sought and offered to the appellant in the year 2020-21. The claim made by the appellant to the post, in the aforesaid factual matrix by filing a representation and then a writ petition in the year 2020, was otherwise also highly belated. The post in question was vacated by Dr. Dinesh Vashishth in the year 2011.

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For the reasons mentioned above, we do not find any reason to interfere in the present appeal. The same is, accordingly, dismissed .

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(Piyush Agrawal) (Rajesh Bindal) Judge Chief Justice Allahabad February 02, 2022 AHA

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Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No

Mashkoor Hasan v. State of U.P. and 6 Others

Case brief

What is this about?

What the court decided

Mashkoor Hasan v. State of U.P. and 6 Others

Case brief

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What the court decided

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