# Vishwanath Katiyar v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 343
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-15
- **Case number:** Civil Misc. Writ Petition No. 20127 of 2010
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwanath-katiyar-v-state-of-u-p-and-others-41478
- **Pages:** 7

## Headnote

S.C.

U.P.
Secondary
Education
Service
Selection Board Rules, 1998, Rule 12Selection/appointment
of
Principalchallenged on ground that R-5 neither
given preference for the institution in
question-nor participated in interview in
concern
board-held-misconceived-a
better qualified candidate can supersetprovision of participation of interview in
same institution-held-not mandatory.

Held: Para 18

In view of the aforesaid, this Court holds
that merely because respondent no. 5
has not appeared before the Board,
which was constituted for the institution,
or he had not mentioned the institution
in question as one of his choice, it cannot
be said that his selection for the
institution on overall merit is illegal in
any manner. Interim orders relied are
not precedent, more so when this writ
petition is being finally decided.
Case law discussed:
Special Appeal No. 1454 of 2006, 2006 (1)
UPLBEC page 334.

## Text

1 All] Vishwanath Katiyar V. State of U.P. and others
343
and appointment letter has been issued,
the power of relaxation of period of
limitation shall fall under the category of
procedural irregularity, which may be
cured at any point of time after issuance
of appointment letter.

13. In view of that, the writ petition
succeeds and is allowed. The impugned
order dated 9.11.2006 is hereby quashed.

14. The respondent no. 2 is directed
to permit the petitioner to join her service
and pay salary in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 20127 of 2010

Vishwanath Katiyar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Yogish Kumar Saxena

Counsel for the Respondents:
S.C.

U.P.
Secondary
Education
Service
Selection Board Rules, 1998, Rule 12Selection/appointment
of
Principalchallenged on ground that R-5 neither
given preference for the institution in
question-nor participated in interview in
concern
board-held-misconceived-a
better qualified candidate can supersetprovision of participation of interview in
same institution-held-not mandatory.

Held: Para 18

In view of the aforesaid, this Court holds
that merely because respondent no. 5
has not appeared before the Board,
which was constituted for the institution,
or he had not mentioned the institution
in question as one of his choice, it cannot
be said that his selection for the
institution on overall merit is illegal in
any manner. Interim orders relied are
not precedent, more so when this writ
petition is being finally decided.
Case law discussed:
Special Appeal No. 1454 of 2006, 2006 (1)
UPLBEC page 334.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for the
parties.

2. Petitioner before this Court is
working as adhoc Principal in Jan Kalyan
Inter College, Ursan, Kanpur Dehat,
which
is
a
recognized
and
aided
Intermediate College. He seeks quashing
of the select panel dated 16.03.2010
notified by the U.P. Secondary Education
Services Selection Board qua the post of
Principal of the institution.

3. The select list dated 16.03.2010 is
being challenged on three grounds (a)
name of the petitioner was not forwarded
by the institution as amongst two senior
most teachers for participation in the
process of selection under Rule 11(b) of
the U.P. Secondary Education Services
Selection Board Rules, 1998 (hereinafter
referred to as '1998 Rules'), (b) the
respondent no. 5 had not opted for the
post of Principal of the institution
concerned and therefore he cannot be
selected and (c) He was not interviewed
by the Selection Board constituted for the
post of Principal of the College under
Rule 12.

4. For the second and third
proposition reliance has been placed upon
344 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the interim order granted by the Hon'ble
Single Judge in Writ Petition No. of 2009
and that by the Division Bench of this
Court in Special Appeal Nos. 323 of 2010
and Special Appeal No. 73 of 2010.

5. Counsel for the petitioner submits
that since under Rule 12 (1) of 1998 Rules
a candidate is required to exercise options
for three institutions at the maximum and
further that under Rule 12(2) Selection
Board are constituted institution-wise for
the post of Principal, a candidate, who has
not exercised his option for a particular
institution under Rule 12(1), he cannot be
considered for the vacancy in the
institution for which he has not exercised
his option. He further submits that since
the Selection Board is to be constituted
for
every
institution
separately,
a
candidate, who is interviewed by the
Board for the institution alone, is to be
considered for empanelment against the
vacancy in a particular institution. In case
he does not participate in the interview
before the said Selection Board, he cannot
be considered for the said institution.

6. This Court may record that the
petitioner has already attained the age of
superannuation
i.
e.
62
years
on
3.01.2010. In view of the Division Bench
judgment of this Court in Special Appeal
No. 1454 of 2006 (Hari Om Tatsat
Brahm Shukla Vs. State of U.P. and
others), he cannot continue as adhoc
Principal subsequent to attaining the age
of superannuation nor he can be appointed
as Principal after attaining the age of
superannuation. Thus, no order can know
be granted for consideration of the case of
the petitioner on the strength of the
allegation that he was amongst the two
senior most teachers entitled to be
considered for appointment as Principal
without his having applied.

7. So far as the non-consideration of
the claim of the petitioner in the process
of selection is concerned, this Court may
only record that fault if any in that regard
lies upon the management only. The
petitioner, who is working as Ad-hoc
Principal of the institution, must have
been aware of the letter of the Board
calling upon the institution to send name
of two senior most teachers of the
institution. Counsel for the petitioner
admits that a letter was received calling
for the senior two teachers to participate
in the selections yet, as the letter was
received 10 days prior to the selection, the
name of two teachers were not forwarded.

8. I am of the considered opinion
that the period of 21 days prescribed
under Rule 8(6) of the U.P. Secondary
Education
Services
Selection
Board
Rules, 1998 is only directory in nature.
Although calling of the two senior most
teachers and their records is mandatory
but the period of notice i.e. 21 days before
the date of interview is only directory in
nature. More over the petitioner should
have appeared before the Board and
should have raised his objections, if any,
qua the notice period being shorted at that
stage itself. Now, when he has reached
the age of superannuation, no relief for
being considered in the selection can be
granted.

9. The second and third grounds
raised are seriously opposed by the
counsel for the U.P. Secondary Education
Services Selection Board. It is stated that
the options, which is asked for from the
candidates at the time of submission of
application forms are only directory in
1 All] Vishwanath Katiyar V. State of U.P. and others
345
nature and they are not binding upon the
Board. The Board is in fact obliged to
offer appointment to the candidates
having regard to the over all merit secured
in the region. He submits that any other
criterion if adopted would result in a
situation
where
more
meritorious
candidates selected by the Board from
open market would not be offered
appointment
against
the
advertised
vacancy available in the institution, while
a candidate much below in merit would
be offered such appointment merely
because he had opted for the said
institution in his application form.

10. For appreciating the controversy
raised, it is worthwhile to reproduce Rule
12(1), 12(2), 12(6), 12(8), 12(9) and
12(10), which read as follows:

"12.
Procedure
for
direct
recruitment.-(1)The
Board
shall,
in
respect of the vacancies to be filed by
direct
recruitment,
advertise
the
vacancies including those reserved for
candidates
belonging
to
Scheduled
Castes,
Scheduled
Tribes,
Other
Backward Classes and other reserved
categories as applicable to Government
service from time to time, in at least two
daily newspapers, having wide circulation
in the State and call for the applications
for being considered for selection in the
pro forma published in the advertisement.
For the post of Principal of an
Intermediate College or the Headmaster
of a High School, the name and place of
the institution shall also be mentioned in
the advertisement and the candidates
shall be required to give the choice of not
more than three institutions in order of
preference and if he wishes to be
considered for any particular institution
or institutions and for no other institution,
he
may
mention
the
fact
in
his
application.
(2) The Board shall scrutinize the
applications and in respect of the post of
teacher in lecturers and trained graduates
grade, shall conduct written examination.
The written examination shall consist of
one paper of general aptitude test of two
hours, duration based on the, subject. The
centers
for
conducting
written
examination shall be fixed in district
headquarters only and the invigilators
shall be paid honorarium at such rate as
the Board may like to fix.
(6) The Board, having regard to the
need for securing due representation of
candidates belonging to the Scheduled
Castes/Scheduled
Tribes
and
Other
Backward Classes of citizens in respect of
the post of teacher in lecturers and
trained graduates grade, shall call for
interview such candidates who have
secured the maximum marks under subclause (4) above/and for the post of
Principal/Headmaster,
shall
call
for
interview such candidates who have
secured maximum marks under subclause (5) above in such manner that the
number of candidates shall not be less
than three and not more than five times of
the number of vacancies:
Provided that in respect of the post
of the Principal or Headmaster of an
institution the Board shall also in addition
call for interview two seniormost teachers
of the institution whose names are
forwarded by the management through
Inspector under clause (b) of sub-rule (2)
of rule 11.
(8) The Board then, for each category of
post, prepare panel of those found most
suitable for appointment in order of merit
as disclosed by the marks obtained by
them after adding the marks obtained
under sub-clause (4) or sub-clause (5)
346 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
above, as the case may be, with the marks
obtained in the interview. The panel for
the post of Principal or Headmaster shall
be prepared institution-wise after giving
due regard to the preference given by a
candidate, if any, for appointment in a
particular institution whereas for the
posts in the lecturers and trained
graduates grade, it shall be prepared
subject-wise and group-wise respectively.
If two or more candidates obtain equal
marks, the name of the candidate who has
higher quality points shall be placed
higher in the panel and if the marks
obtained in the quality points are also
equal, then the name of the candidate who
is older in age shall be placed higher. In
the panel for the post of Principal or
Headmaster, the number of names shall
be three-times of the number of the
vacancy and for the post of teachers in the
lecturers and trained graduates grade, it
shall be larger (but not larger than
twenty-five per cent) than the number of
vacancies.
(9) At
the
time
of
interview
of
candidates, for the post of teachers in
lecturers and trained graduates grade, the
Board shall, after showing the list of the
institutions which have notified the
vacancy to it, require the candidates to
give, if he so desires, the choice of not
more than five such institutions in order
of preference, where, if selected, he may
wish to be appointed.
(10) The Board shall after preparing the
panel in accordance with sub-rule (8),
allocate the institutions to the selected
candidates in respect of the posts of
teachers
in
lecturers
and
trained
graduates grade in such manner that the
candidate whose name appears at the top
of the panel shall be allocated the
institution of his first preference given in
accordance with sub-rule (9). Where a
selected candidate cannot be allocated
any of the institutions of his preference on
the ground that the candidates placed
higher in the panel have already been
allocated such institutions and there
remains no vacancy in them, the Board
may allocate any institution to him as it
may deem fit."

11. From a simple reading of the
aforesaid rules it would be apparently
clear that a candidate is asked to exercise
his option in his application form, in
respect of three institutions at the
maximum and in case the candidate does
not desire to be considered for any other
institution (except the three for which he
has exercised his choice), he shall make a
note thereto in the application itself in
writing. Meaning thereby, if a candidate
does not add the note qua his candidature
being not considered for the institutions
other than for which he has exercised his
option, the Board is under legal obligation
to consider his candidature for other
institutions also, which are subject matter
of advertisement and qua which the
option has not been exercised.

12. So far as the constitution of the
Selection Board is concerned, it is no
doubt
true
that
Rule
12
requires
establishment
of
Selection
Board
institution-wise but if the contention
raised on behalf of the petitioner is
accepted, then a candidate will be
required to face at least three Board
constituted in respect of three institutions
for which he has opted. Such can never be
the intention of the Legislature. In the
same process of selection a candidate
cannot be asked to face three Board qua
three institutions, which are subject matter
of common selection by a statutory
Commission.
1 All] Vishwanath Katiyar V. State of U.P. and others
347
13. The logical meaning to be
attached to Rule 12(2) is that although
separate Board are to be constituted
institution-wise
but
the
candidate
applying from open market is to be
interviewed only once and his claim be
considered on the basis of overall merit i.
e. quality point marks and interview
marks, which are to be awarded by the
Board
he
faced.
The
purpose
of
constituting separate Board for each
institution is to ensure that two senior
teachers of the institution concerned, who
are entitled to be considered without they
having applied under Rule 11(2), are
interviewed
by
the
Board
of
that
institution only. The intention is not that
an open market candidate shall face
separate interview Boards constituted for
the various institutions, vacancy whereof
has been advertised.

14. It has to be kept in mind that the
power to select a candidate for the post of
Principal
in
recognized
and
aided
Intermediate Colleges situate throughout
the State of Uttar Pradesh has been
conferred upon a common statutory body
namely
U.P.
Secondary
Education
Services Selection Board. The purpose
being that the best candidate may be made
available
to
the
institutions.
Any
interpretation of the Rules, which lead to
the situation where a person with lower
merit gets appointed, would be defeating
the very purpose for which the U.P.
Secondary Education Services Selection
Board has been constituted. Therefore,
1998 Rule, specifically Rule 12, has to be
read in a manner which leads to
furtherance of object for which U.P.
Secondary Education Services Selection
Board itself has been constituted and does
not defeat the same on technicalities.

15. I am of the opinion that there
cannot be a compromise with the merit on
technicalities and a person who is more
meritorious has a right to be appointed in
preference to a person who is lower in
merit.

16. This Court has no hesitation to
hold that preference exercised by the
candidate in his application form is only
directory in nature and does not in any
way defeat his right for being selected
against any other vacancy of an institution
which was subject matter of same
advertisement and for the same region.
From the procedure and preparation of the
select list it is apparently clear that the
same has to be drawn on the over all merit
secured by the candidate and his choice is
to be considered only with reference to
his merit. The choice cannot be made tool
to defeat the merit, as suggested by the
counsel for the petitioner.

17. In respect of identical provisions
under the U.P. Higher Education Services
Selection Board Act, 1980, the full Bench
of this Court in the case of Vinay Kumar
(Dr.)
Vs.
Director
of
Education
(Higher) Allahabad reported in 2006 (1)
UPLBEC page 334 approved the law laid
down in Alka Rani's case and in
paragraphs 34 to 40 and 43 has laid down
as follows:-

"34. We are of the opinion that the
Director cannot give any weight at all to
the preference of the management in the
selection of a particular candidate as
their Principal or their Teacher.
35. The Education Act of U.P. and the
Rules and Regulations thereunder have
been framed for various purposes, one of
which is to see it that the management
does not staff its college only in the
348 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
manner it likes, that the staff is selected
with a view to proper education of the
students and the children and the best
possible available candidates are put in
the teaching jobs. The tendency of the
management to favour its own candidates
for extraneous reasons is negatived by the
manner and procedure of the selection,
which is given in these educational
schemes and Acts. We find that in Section
13 there are only two factors for grading
or selecting a candidate for a particular
college. The first gradation is made as per
Section 13 (1), on the basis of interview
with or without examination and this
gradation is called the merit list.
36. This merit list is not the only list.
Though the management has no say in the
matter, the employee, i.e. the prospective
Principal or the prospective Teacher has
a say of his own. He can make a
preference for a College.
37. In our opinion, the Director at the
time of making intimation is to take into
account only two things, in regard to
every candidate, namely, the candidate's
merit position as determined under
Section 13 (1), and the preferential list of
colleges or institutions given by the
candidate himself.
38. How the Director is to allot the
candidates to the different colleges on the
basis of these two items and these two
items only are, with respect, correctly laid
down by the Division Bench in paragraph
9 in Alka Rani's case (Supra) and we
agree with that paragraph in toto.
39. In our opinion the Director does not
use a discretionary power in making
intimations under sub-section 8 (3) of
Section 13. Instead of the Director, any
other person with an equally logical mind
as the Director will also be able to
perform the same act but the Director has
been given the authority, so as to carry
conviction and to make it safe for the
colleges to follow the recommendations
and
intimations
coming
under
his
signature.
40. The wording of sub-section (3) of
Section 13 show that Director's action is
compulsory prescribed by the said subsection. Although the said sub-section
does not refer to the merit list at all yet as
laid down in paragraph 9 of Dr. Alka
Rani's case (supra) the merit list must be
considered by the Director and in this
regard the Director cannot disregard subsection (1) of Section 13 and the exercise
performed under that sub-section. The
exercised by the Director is performed
thereafter and must be preformed thereon.
43. In this view of the matter we abide by
what was said in paragraphs 9 and 10
(first sentence only) of Dr. Alka Rani's
case (Supra) and respectfully disapprove
what was said in that case in paragraphs
10 (rest) and 11. We make it clear that we
approve of the first sentence in paragraph
10 of Dr. Alka Rani's case (Supra) but
disapprove only of the latter part of that
paragraph where the exception is said to
be spelt out."
18. In view of the aforesaid, this
Court
holds
that
merely
because
respondent no. 5 has not appeared before
the Board, which was constituted for the
institution, or he had not mentioned the
institution in question as one of his
choice, it cannot be said that his selection
for the institution on overall merit is
illegal in any manner. Interim orders
relied are not precedent, more so when
this writ petition is being finally decided.

19. Writ petition is dismissed.
---------
1 All] Director, Institute of Mental Health V. Santosh Kumar Gautam and others
349
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2010

BEFORE
THE HON'BLE VIJAY MANOHAR SAHAI, J.
THE HON'BLE RAJ MANI CHAUHAN, J.

Special Appeal No. 982 of 2003

Director Institute of Mental Health &
Hospital, Agra

...Appellant
Versus
Santosh Kumar Gautam and others

 ...Respondents

Counsel for the Petitioner:
Sri G.K. Singh
Sri V.K. Singh
Sri A.P. Sahi

Counsel for the Respondents:
Sri Ashok Khare
Sri K.M. Saxena
Sri K.N. Saxena
Sri N.S. Chahar
C.S.C.

Constitution of India, Art. 226-Petitioner
working as class 4th employee in mental
Hospital, Agra-under central of Director
Medical Health and Family Welfare-after
conversion of Govt. Hospital in to society
all concerned were required give optionrefused by the petitioner-held-for all
purpose they are govt. employee-can not
be forced to work on deputation without
giving the period of deputation-can not
be treated the employee of new hospital.

Held: Para 30
Since the petitioners opted to remain
government servants and they did not
opt to be posted on deputation in the
new institution. Therefore, they were
sent back to their parental department
i.e.
Health
Department
of
U.P.
Government. The petitioners who did not
opt to be posted in the new institution
on deputation cannot be posted there on
deputation against their option. The
society of the new institution too cannot
be forced to retain those petitioners who
were the government servants and did
not opt to be posted on deputation in the
new institution.

(Delivered by Hon'ble Raj Mani Chauhan, J.)

1. Heard Sri G.K. Singh, learned
counsel for the petitioner and Sri K.N.
Saxena,
learned
counsel
for
the
respondent.

2. This Intra Court Appeal has been
filed by the Respondent No. 5, the
Director,
Mansik
Arogyashala/Mental
Hospital, Agra, District Agra in Civil
Misc. Writ Petition No. 48859 of 2002
(Santosh Kumar Gautam & 22 Others
Versus State of U.P. and 4 Others) against
the judgment and order dated 23.09.2003
passed by the learned Single Judge in the
above writ petition whereby he had
allowed the writ petition filed by the
petitioners.

3. The relevant facts giving rise to
the present appeal may be summarized as
under:

4. The petitioners-respondents no. 1
to 22 were initially appointed as class
IVth employee on different posts like
Attendants, Rajmistri, Cook, Game Ardali
and Sweeper by the appellant in Mansik
Arogyashala/Mental Hospital, Agra which
was under the control of Medical, Health
and Family Welfare, Department of U.P.
Government. A similar hospital known as
Ranchi Mansik Arogyashala was being
run by the Bihar Government. A writ
petition no. 448/1994 was filed by one
Aman Hingorani against Union of India
and Others before the Hon'ble Supreme
Court in which the Hon'ble Supreme