Document Fragment View

Matching Fragments

Hon'ble Mrs. Jayashree Tiwari, J.

The U.P. Secondary Education Service Selection Board, constituted under the U.P. Secondary Education Service Commission and Selection Board Act, 1982, has filed this Special Appeal through its Secretary, challenging the judgement of learned Single Judge dated 30.11.2009 in Writ Petition No. 40377 of 2008, allowing the writ petition and holding that the filling up of the advertised vacancies, subject matter of Advertisement No. 1 of 2005, (a) by adjustment in exercise of powers under Rule 13 (5) of the U.P. Secondary Education Service Selection Board Rules, 1998, of candidates selected in pursuance to the 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 31-E, is patently illegal and in the teeth of the provisions of the Act of 1982 and the Rules of 1998 framed thereunder. The Court held that all such kind of appointments against advertised vacancies were illegal and appropriate action be taken by the authorities within four weeks of filing a certified copy before the Secretary, Secondary Education, Government of UP, Lucknow. The Court issued further directions to complete the process of selection in respect of all the advertised vacancies except 57 posts which were wrongly advertised, within four months by inviting necessary number of candidates, with reference to their merit in written examination and quality point marks, for interviews and by declaring the final results within two months.

5. The merit of the candidate shall be prepared after addition of the marks obtained in the written examination, interview and other special merit marks and final select list declared category-wise."

The Board got the answer sheets re-evaluated and declared results a fresh inviting 620 candidates in the ratio of 5:1 as against 128 vacancies only. The candidates again filed the writ petition apprehending that the remaining vacancies had been filled up by resorting to the newly added Rule 13 (5) to the Rules of 1998 dated 23.1.2007. They prayed for declaring Rule 13 (5) as ultra vires and for seeking a mandate requiring the Selection Board to declare the result of all the 399 vacancies and to complete the process of selection.

(f) In some applications/affidavits it has been stated that the candidates have been appointed against a different subject posts not covered by the advertisement no. 1 of 2005 and therefore there can be no dispute qua their appointments"

Learned Single Judge found that the advertisement under Rule 13 (5) of the Rules of 1998 had been made on the ground that earlier in pursuance to the advertisement to which they were selected either there was no vacancies, or the vacancy was reserved for a different category. The Court also found that some of these persons could not get appointment as the posts was already consumed by regularisation of adhoc appointees. Learned Single Judge also found that the reduction in the number of vacancies was also on the ground that a number of posts were either fictitious or requisitions were made by the institutions, which were either not running, or that the posts were repeated in the advertisement. The Board also included large number of vacancies for which no requisition was received and that a total number of 57 posts were such on which no selections could be made. Learned Single Judge after making the aforesaid calculations found that 57 such posts were wrongly advertised and that the vacancies could work out to only 399-57 = 342. The Court also accepted the report of the Committee constituted by the Secretary, Madhyamik Shiksha, that 69 posts are still available against advertised vacancies of Advertisement No. 1 of 2005 qua which selection process should be completed.

Shri Ashok Khare submits that as against 399 vacancies the Board could find only 128, and thereafter added 69 more to make it 197. He submits that in Satish Kumar vs. State of UP & others 2006 (4) ESC 2786 (All.) (DB) it has been held that unadvertised vacancy cannot be filled up from amongst the candidates, who have been selected in any previous selection. Further, the unadvertised vacancy cannot also be filled up without following the procedure of selectioin vide Smt. Amita Sinha vs. State of UP 2008 (4) ESC 2799 (All.) (DB). He also relies upon Secretary, A.P. Public Service Commission vs. B. Swapana and others 2005 (2) ESC 247 in submitting that selection process initiated must be completed in accordance with the statutory provisions and that subsequent amendments in the statutory provisions will not affect the process.