# Vivek Kumar Upadhyay v. State Of U.P. & Ors

- **Citation:** (2022) 3 ILRA 533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-25
- **Case number:** WRIT A No. 364 of 2022
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-upadhyay-v-state-of-u-p-ors-48214
- **Pages:** 22

## Headnote

A. Service Law - Intermediate Education
Act, 1921 - Section 16-E - UP Secondary
Education Services Selection Board, Rules,
1998 - Rule 11-(2) (b) - Post of Principal
-
Selection
and
appointment
-
Requirement of being two senior most
Lecturer of institution, non-fulfillment
thereof - Effect - Held, none of the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners were amongst the two senior
most teachers either on the date of
occurrence of vacancy or sending of
requisition so as to fall within the zone of
consideration under Rule 11(2)(b) of
Rules, 1998, therefore, their claim falls.
(Para 27 and 56)
B. Constitution of India - Article 226 -
Locus standi - Advertisement issued -
Petitioners
failed
to
challenge
it
-
Consequence - Held, the petitioners do
not have any locus standi to maintain the
writ
petition
in
their
present
form,
especially as, they have not challenged
the said advertisements on the ground of
inordinate delay of about 10 or more years
in holding the selections. (Para 61)
Writ petitions dismissed. (E-1)
List of Cases cited :-

## Text

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3 All. Vivek Kumar Upadhyay Vs. State of U.P. & Ors.
533
normal rule is that a writ petition under
Article 226 of the Constitution ought not to
be
entertained
if
alternate
statutory
remedies are available, except in cases
falling within the well-defined exceptions
as observed in CIT v. Chhabil Dass
Agarwal [CIT v. Chhabil Dass Agarwal,
(2014) 1 SCC 603] , as follows: (SCC p.
611, para 15)

"15. Thus, while it can be said
that this Court has recognised some
exceptions to the rule of alternative remedy
i.e. where the statutory authority has not
acted in accordance with the provisions of
the enactment in question, or in defiance of
the fundamental principles of judicial
procedure, or has resorted to invoke the
provisions which are repealed, or when an
order has been passed in total violation of
the principles of natural justice, the
proposition
laid
down
in
Thansingh
Nathmal case [Thansingh Nathmal v. Supt.
of Taxes, AIR 1964 SC 1419] , Titaghur
Paper Mills case [Titaghur Paper Mills Co.
Ltd. v. State of Orissa, (1983) 2 SCC 433 :
1983 SCC (Tax) 131] and other similar
judgments that the High Court will not
entertain a petition under Article 226 of the
Constitution if an effective alternative
remedy is available to the aggrieved person
or the statute under which the action
complained of has been taken itself
contains a mechanism for redressal of
grievance still holds the field. Therefore,
when a statutory forum is created by law
for redressal of grievances, a writ petition
should not be entertained ignoring the
statutory dispensation."

19. Thus, in light of the proposition as
noted above also considering the dictum of
the Apex Court in the case of Vidhunagar
(Supra), the appellant could not encompass
its
case
within
the
exceptions
as
enumerated in the case of CIT Vs. Chhabil
Dass Agarwal reported in (2014) 1 SCC
603, hence, the case of Whirlpool (supra)
will not come to the rescue of the appellant.
Even the case of Syed Yakub (supra) has
no applicability in light of the decision of
Radhey Shyam (supra) as noted above.
Moreover, the learned counsel for the
appellant could not dispute the embargo
placed by the the binding precedent of the
Full Bench of Sheet Gupta (supra), which
is squarely applicable to the present case.

20. In light of the detailed discussion,
this Court is of the considered view that the
Special Appeal is not maintainable and it is
accordingly dismissed. No order as to
costs.
----------
(2022)03ILR A533
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.02.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

WRIT A No. 364 of 2022
and other cases

Vivek Kumar Upadhyay ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Chandra Tewari

Counsel for the Respondents:
C.S.C., Rishabh Tripathi

A. Service Law - Intermediate Education
Act, 1921 - Section 16-E - UP Secondary
Education Services Selection Board, Rules,
1998 - Rule 11-(2) (b) - Post of Principal
-
Selection
and
appointment
-
Requirement of being two senior most
Lecturer of institution, non-fulfillment
thereof - Effect - Held, none of the
534 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners were amongst the two senior
most teachers either on the date of
occurrence of vacancy or sending of
requisition so as to fall within the zone of
consideration under Rule 11(2)(b) of
Rules, 1998, therefore, their claim falls.
(Para 27 and 56)
B. Constitution of India - Article 226 -
Locus standi - Advertisement issued -
Petitioners
failed
to
challenge
it
-
Consequence - Held, the petitioners do
not have any locus standi to maintain the
writ
petition
in
their
present
form,
especially as, they have not challenged
the said advertisements on the ground of
inordinate delay of about 10 or more years
in holding the selections. (Para 61)
Writ petitions dismissed. (E-1)
List of Cases cited :-
1. Nand Kishore Prasad Vs U.P. Secondary
Education Services Commission, Allahabad &
ors.; 1990 (1) UPLBEC 539
2. Civil Misc. Writ Petition No. 31736 of 2011;
Shayam Lal & anr. Vs St. of U.P. & ors. decided
on 29.08.2011
3. Writ A No. 36881 of 2000; Prem Kishor
Sharma Vs U.P. Secondary Education Services
Selection Board & ors.
4. Smt. Sadhna Vs St. of U.P. & ors.; 2017 (6)
ADJ 418
5. Special Appeal No. 258 of 2010; Bhola Nath
Singh Vs St. of U.P. decided on 12.03.2010
6. Civil Misc. Writ Petition No. 32406 of 2011;
Jagdish Prasad Pandey Vs St.of U.P. & ors.
decided on 16.08.2011
(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Shri Ashit Chaturvedi,
learned Senior Counsel along with Sri
K.M. Shukla, Shri R.C. Tiwari, Shri Shard
Pathak and Shri Amrendra Nath Tripathi,
learned
counsel
appearing
for
the
petitioners,
Shri
Raj
Kumar
Singh
Suryavanshi and Shri Raishabh Tripathi,
learned counsel for the Board and learned
Additional Chief Standing Counsel for the
State.

2. All the writ petitions involve
similar facts and issues, therefore, they
were heard together and are now being
decided by a common judgment.

3. The relief prayed for in the Writ
Petitions and the facts of the case need to
be mentioned as far as they are relevant.

4. The relief clause in Writ Petition
No. 372 of 2022 reads as under:-

"I. Issue a writ, order or direction
in the nature of Certiorari thereby
quashing the impugned Condition No.5 of
Circular dated 5.1.2022 by means of which
the date 25.2.2014 has been fixed for
considering the eligibility criteria two
senior most teachers for holding the post of
Principal
of
recognized
institutions
recognized under the provisions of Uttar
Pradesh Intermediate Education Act 1921.

II. Issue a writ, order or direction
in the nature of Mandamus commanding
the opposite party No.2 to take into
consideration the eligibility of two senior
most teachers, including the petitioner, for
holding selection on the post of Principal of
Rajarshi Tandon Inter College, Ram Nagar
Athgawan,
Pratapgarh
under
the
provisions of Uttar Pradesh Secondary
Education Service Selection Board Act,
1982 and Rules made there under as
10.1.2022, which is the last date for
sending the details of them before the
Board by the concerned District Inspector
of Schools."

5. In this case the petitioner claims to
be working as Ad-hoc Principal of the
3 All. Vivek Kumar Upadhyay Vs. State of U.P. & Ors.
535
Institution in question w.e.f. 13.04.2021. It
is stated that the post of Principal in the
institution fell vacant on superannuation of
Shri Nagendra Nath Tiwari on 30.06.2013.
Accordingly, on a requisition being sent
the same was advertised by the Board on
31.12.2013 by Advertisement No. 3 of
2013. In view of the averments made in
Paragraph No. 6 of the writ petition, it is
evident that the petitioner was not
amongst the two senior most teachers of
the institution at the time of occurrence of
vacancy nor at the time of sending of
requisition to the Board or issuance of
aforesaid advertisement for the purposes
of consideration under Rule 11-(2)(b) of
the Uttar Pradesh Secondary Education
Services Selection Board Rules, 1998
(hereinafter referred to as 'the Rules,
1998) and it is only in 2021 that he was
made Ad-hoc Principal possibly being the
senior most or amongst two senior most
teachers.

6. The selection in pursuance to the
advertisement issued on 31.12.2013 could
not be completed. According to the
petitioner on 05.01.2022 a Circular was
issued for uploading details of the two
senior most teachers on the Official
Website of the Board. The requisite
information
was
required
to
be
sent/uploaded by a particular cut off date
and the details of the petitioner have been
sent on 06.01.2022 by the D.I.O.S. and the
same have been uploaded, as asserted, on
08.01.2022, but, the interview letter was
not issued to the petitioner and as per the
averments made in Paragraph 15 of the writ
petition, this is on account of the fact that
the petitioner did not fulfill the requisite
eligibility conditions as on 25.02.2014
which was last date for filing application
for being considered for appointment as per
the Advertisement No. 3 of 2013.

7. In Paragraph No. 15 it has also
been stated that the petitioner joined his
service as Lecturer in the Institution on
24.11.2004. As he was not a trained
teacher, therefore, in order to be eligible for
the post of Principal, 10 years experience
was required which was not complete as on
25.02.2014. He acquired the qualification
of B.Ed. and became a trained teacher in
February, 2015 i.e. subsequent to the
relevant date which is 25.02.2014. There is
no averment in the writ petition that the
petitioner was eligible, having the requisite
qualification and experience for the post of
Principal when the vacancy occurred, or the
requisition was sent or on the relevant date
when the Advertisement No. 3 of 2013 was
issued. In fact during the course of
argument it was fairly accepted that on the
relevant date the petitioner did not have
requisite experience for the post of
Principal. There is no averment in the writ
petition that the petitioner was was
amongst the two senior most teachers in the
institution at that time.

8. The relief clause of Writ - A No.
364 of 2022 reads as under :-

"(A) To issue a Writ, Order or
Direction in the nature of Certiorari
quashing the impugned condition laid down
in para 3 of the impugned release dated
02.01.2022. (Annexure No.1) by means of
which the date 25.2.2014 has been fixed for
considering the eligibility criteria two
senior most teachers for holding the post of
Principal
of
recognized
institutions
recognized under the provisions of Uttar
Pradesh Secondary Education Service
Selection Board Act, 1921.

(B) To issue a Writ, Order or
Direction in the nature of mandamus
commanding the opposite party No.2 to
536 INDIAN LAW REPORTS ALLAHABAD SERIES
take into consideration the eligibility of two
senior
most
teachers,
including
the
petitioner, for holding selection on the post
of Principal of recognized institutions
under the provisions of Uttar Pradesh
Secondary Education Service Selection
Board Act, 1921 as 16.01.2022, which is
the last date for sending their details before
the Board by the concerned District
Inspector of Schools."

9. In this case also the grievance of
the petitioner is that the cut off date for
determining the eligibility is being treated
as 25.02.2014 based on the advertisement
No. 3 of 2013 and as the petitioner did not
fulfill the requisite eligibility conditions i.e.
qualification and experience on the said
date, therefore, he is not being considered,
although, he is officiating on the post of
Principal in the institution concerned since
19.06.2016. He was promoted to the post of
Lecturer
on
01.04.2016
which
was
allegedly confirmed by opposite party no. 3
on 27.05.2016. It is not the case of the
petitioner that he was amongst the two
senior most teachers of the institution when
the vacancy occurred on the post of
Principal and thereafter advertisement was
issued on 30.12.2013. In fact from the
pleadings it appears he became the senior
most and was given officiation of the post
of Principal only in 2016. The case of the
petitioner
is
that
his
eligibility
for
appointment should be considered as on
08.01.2022 which is the last date for
uploading information in pursuance to the
Circular dated 02.01.2022 etc. issued by the
opposite
parties
in
respect
to
the
Advertisement No. 3 of 2013.

10. The advertisement being the same
as in the first writ petition it may be
reiterated that the selection was not
completed and subsequently in January,
2022 certain circulars have been issued
which shall be dealt with hereafter. It is
nowhere mentioned in the writ petition that
the petitioner was eligible and within the
zone of consideration for appointment as
Principal in 2013 when the vacancy
occurred and/or the advertisement was
issued. In fact, it is the admitted position
that he was not eligible as on 25.02.2014
which was the last date for submission of
application in pursuance to the said
advertisement. In fact during the course of
argument it was fairly accepted that on the
relevant date the petitioner did not have the
requisite experience for the post of
Principal. However, it is the case of the
petitioner that said advertisement was only
for candidates from the open market and
not for the two senior most teachers,
therefore,
their
eligibility
should
be
determined on a separate date which in this
case should be 08.01.2022. This is also the
case in the earlier writ petition referred
hereinabove.

11. The relief clause of Writ- A No.
241 of 2022 reads as under:-

"(i) Issue a writ, order or
direction in the nature of Certiorari
thereby quashing the impugned panel dated
29.12.2021 issued by Opposite Party No.4
in pursuance of advertisement no. 01/2011,
so far it relates to selection & allocation of
Opposite Party No.6, on the post of
Principal in the institution in question, as
contained as Annexure No. 1 to this writ
petition.

(ii) Issue a writ, order or
direction in the nature of Certiorari
thereby quashing the consequential order
dated 03.01.2022 issued by the Opposite
Party No.3 in pursuance of the Panel dated
29.12.2021, issued by Opposite Party No 4,
3 All. Vivek Kumar Upadhyay Vs. State of U.P. & Ors.
537
as contained as Annexure No. 2 to this writ
petition."

12. In this case the petitioner has
challenged the empanelment of candidates
dated 29.12.2011 issued by the opposite
party
no.
4
in
pursuance
to
the
Advertisement no. 1 of 2011 in which the
opposite party no. 6 has been selected for
appointment as Principal in the institution
in question, meaning thereby, the selection
has already been held in pursuance to the
Advertisement No. 1 of 2011, in this case.

13. The petitioner claims to have
joined the institution on the post of
Lecturer on 18.09.2007. He claims that his
name figures at Serial No. 1 in the seniority
list of Lecturers of the institution issued for
the year 2020-21. He was made Ad-hoc
Principal vide order dated 28.09.2019. The
post of Principal was advertised vide
Advertisement No. 1 of 2011. In pursuance
to which, the opposite parties no. 6 and 7
have been selected as stated in Para 14 of
the writ petition. There is no averment in
the writ petition that the petitioner was a
trained teacher. During the course of
argument learned counsel for petitioner
asserted that his services as Subject Expert
were liable to be counted and based thereon
he is eligible as of now for the post of
Principal, however, the requisite factual
foundation is absent in the writ petition in
this
regard.
The
cut
off
date
for
determining the eligibility, based on the
Advertisement
No.
1
of
2011,
is
25.08.2011, as informed by learned counsel
for petitioner himself. The counsel asserted
that he was a trained teacher possessing
qualification
of
B.Ed.,
therefore,
he
required only four years experience in
addition to the qualification prescribed.
Although, as stated, in the writ petition the
qualification of the petitioner is nowhere
mentioned, nevertheless, this aspect would
be considered subsequently. In any case
there is no assertion in the writ petition that
the petitioner was amongst the senior most
teachers eligible for being considered for
appointment as Principal under Rule 11-
(2)(b) of the Rules, 1998 at the relevant
time in pursuance to the Advertisement No.
1 of 2011. There is no averment in the writ
petition that the petitioner was eligible
having
requisite
qualification
and
experience for the post of Principal when
the vacancy occurred or on the relevant
date when the Advertisement No. 1 of 2011
was issued. In fact during the course of
argument it was fairly accepted that on the
relevant date the petitioner did not have the
requisite experience for the post of
Principal.

14. The relief clause of Writ - A No.
254 of 2022 is as under:-

"(i) Issue a writ, order or
direction in the nature of Certiorari
thereby quashing the impugned panel dated
29.12.2021 issued by Opposite Party No.4
in pursuance of advertisement no. 01/2011,
so
far
it
relates
to
selection
and
appointment of Opposite Party No.6, on the
post of Principal in the institution in
question, as contained as Annexure No 1 to
this writ petition.

(ii) Issue a writ, order or direction
in the nature of Mandamus commanding the
Opposite Parties to give an opportunity to the
petitioner to participate in the selection
process for the Post of Principal of the
institution being the second senior most
Lecturer of the institution as per provisions of
Board Rules, 1998."

15. In this case also the petitioner has
challenged the empanelment of candidates
538 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 29.12.2021 in pursuance to the
Advertisement No. 1 of 2011 so far as it
relates to selection and appointment of
opposite party no. 6. Here also the
petitioner claims to have been appointed as
Subject Expert for teaching Intermediate
classed in the institution in question vide
appointment letter dated 01.12.2001. She
was appointed as Lecturer vide letter dated
01.11.2007, therefore, she claims that
considering her services as Subject Expert
she was eligible and had the experience for
selection as Principal, however, there is no
averment in the writ petition that she was
amongst the two senior most teachers at the
relevant time when the vacancy on the post
of
Principal
occurred
and/or
the
advertisement
was
issued
in
respect
thereof. In fact, in Para 10 it has been stated
that
Shri
Balram
Pandey
and
Shri
Sadabriksh were two senior most lecturers
at the relevant time. Shri Balram Pandey
retired on 30.06.2013 and after his
retirement the name of next senior most
lecturer should have been sent which was
not done, therefore, the empanelment is
bad. The cut off date for fulfilling the
eligibility criteria was 25.08.2011 in this
case also as the advertisement was the same
i.e. 01/2011. In para 11 it has been stated
that in the seniority list for the year 201314 her name finds place at Serial No. 2,
therefore, her name should have been sent
for consideration in pursuance to the
Advertisement No. 1 of 2011 which was
not done instead the opposite party no. 6
has been selected for appointment. In Para
14 it is stated that on a representation by
the petitioner, the District Inspector of
Schools forwarded the matter to the Board
vide letter dated 10.12.2013, but, the Board
did not do anything in the matter. Interview
for the post in question was held on
31.01.2014 and at that time the petitioner
was the second senior most teacher in the
institution,
but,
her
name
was
not
considered by the Board. There is no
averment in the writ petition that the
petitioner was eligible having the requisite
qualification and experience for the post of
Principal when the vacancy occurred or on
the relevant date when the Advertisement
No. 3 of 2013 was issued. In fact during the
course of argument it was fairly accepted
that on the relevant date the petitioner did
not have the requisite experience for the
post of Principal.

16. The relief clause of Writ - A No.
268 of 2022 reads as under:-

"(i) Issue a writ, order or
direction in the nature of Certiorari
thereby quashing the impugned panel dated
29.12.2021 issued by Opposite Party No.4
in pursuance of advertisement no. 01/2011,
so far it relates to selection and allocation
of Opposite Party No.6, on the post of
Headmaster in the institution in question,
as contained as Annexure No. 1 to this writ
petition.

(ii) Issue a writ, order or
direction in the nature of Mandamus
commanding the Opposite Parties to give
an opportunity
to
the
petitioner
to
participate in the selection process for the
Post of Headmaster of the institution being
the senior most Teacher of the institution as
per provisions of Board Rules, 1998."

17. Here also the petitioner challenges
the empanelment of candidates dated
29.12.2021 so far as it relates to selection
and allocation of opposite party no. 6 on
the post of Headmaster in the institution.
Petitioner claims to have been appointed as
Ad-hoc Assistant Teacher on 27.08.1990.
He claims that ultimately he was appointed
against vacant post on 14.02.1992 in
3 All. Vivek Kumar Upadhyay Vs. State of U.P. & Ors.
539
pursuance of an order of the High Court.
Financial concurrence was granted in this
regard by the D.I.O.S. on 11.03.1992. His
services on the post of Assistant Teacher
were regularized on 19.01.1999. The facts
in this regard are slightly incongruous,
nevertheless, they are, as stated in the writ
petition. In Para 9 it has been averred that
the petitioner is senior most Assistant
Teacher of the institution and at present
post of Headmaster is lying vacant.
Consequently,
he
was
promoted
as
Headmaster on Ad-hoc basis under Section
18 of the U.P. Board Act, 1982 and his
signatures were attested on 29.04.2017,
therefore, obviously the said Ad-hoc
appointment as Headmaster is of year 2017.
In the writ petition it has been stated that
Shri Harish Chandra Dhar Dubey and Shri
Haribux Singh were the two senior most
teachers whose names were sent in
pursuance to the Advertisement No. 1 of
2011 for consideration for appointment as
Principal, but, before the interview could
be held on 31.01.2014 Shri Harish Chandra
Dhar Dubey retired. In Para 18 it is claimed
that on 31.01.2014 when the interview was
held the petitioner was at Serial No. 2 in
the seniority list, as such, his name ought to
have been forwarded for being considered
for selection, but, this was not done. Shri
Hari Bux Singh, the senior most teacher,
whose name had been forwarded, was
considered and got selected, but, prior to
declaration of result, he retired from service
on 31.03.2017 on attaining the age of
superannuation. The petitioner's grievance
is that inspite of the fact that he was
amongst the two senior most teachers as on
31.01.2014 his claim was not forwarded
nor considered. The cut off date for
fulfilling
the
eligibility
criteria
of
qualification
and
experience
was
25.08.2011 in this case also as informed by
learned counsel for petitioner. There is no
averment in the writ petition that the
petitioner was eligible having the requisite
qualification and experience for the post of
Principal when the vacancy occurred or on
the relevant date when the Advertisement
No. 1 of 2011 was issued. In fact during the
course of argument it was fairly accepted
that on the relevant date the petitioner did
not have the requisite experience for the
post of Principal.

18. The relief clause of Writ - A No.
317 of 2022 reads as under:-

"(i). issue a writ, order or
direction in the nature of Certiorari
quashing the impugned requisition sent by
the District Inspector of Schools, Gonda on
27/07/2013 (contained as Annexure No.9 to
this Writ Petition) and also to quash the
impugned advertisement No.3/2013 by
which the direct recruitment to the post of
Principal of the respondent no.5 institution
is being conducted in the year 2021
(contained Annexure No.10 to this Writ
Petition)."

19. In this case, the petitioner has
challenged the requisition sent by the
D.I.O.S. on 21.07.2013 for the vacant post
of Principal, the advertisement bearing
No. 3 of 2013, in respect to which
selection is being conducted, in 2021/22
after almost 9 years of the exercise having
been initiated.

20. On 25.01.2022 Shri Amrendra
Tripathi, learned counsel for the Board had
asserted before the Court that even in 2013
the petitioner was amongst the senior most
teachers, however, from the pleadings in
the writ petition this assertion is belied. The
petitioner claims to have been appointed in
the LT Grade on 12.12.1990 which was
approved on 25.06.1991 by the D.I.O.S.
540 INDIAN LAW REPORTS ALLAHABAD SERIES
His
services
were
regularized
on
16.03.1996 as claimed. He was promoted to
the post of Lecturer on 12.05.2003 which
was approved by the Joint Director of
Education on 13.10.2011. In 2010 Shri
Mahendra Bahadur Singh, the selected
Principal
retired
from
service
and
thereafter, one Shri Ram Saran Singh was
appointed as Ad-hoc Principal and he
continued till June, 2014, as stated in Para
13 of the writ petition. After his retirement
in June, 2014 one Shri Rajendra Prasad, the
senior most lecturer was appointed as Adhoc Principal and he continued up to
15.05.2017, as stated in Para 14 of the writ
petition, therefore, obviously the petitioner
was not the senior most teacher at the
relevant time when the vacancy occurred in
2010 nor when the advertisement was
issued in 2013. As per Para 15 it is only in
2017 that he being the senior most lecturer,
was appointed as Principal on Ad-hoc basis
on 15.05.2017.

21. The case of the petitioner is that
requisition for the vacant post of the
Principal was sent by the D.I.O.S. on
27.07.2013 without the same having been
sent by the Management to him. The
Management
never
determined
the
vacancy, therefore, the D.I.O.S. should not
have sent the requisition without complying
Rule 11-(2)(b) of the Rules, 1998. In Para
28 reference has been made to a letter dated
05.01.2022 of the opposite party no. 6 by
which
information
had
been
sought
regarding the details of the two senior most
lecturers under Rule 11-(2)(b) of the Rules,
1998. In Para 29 it has been stated that
from the letter of opposite party no. 6 dated
08.01.2022 and order of opposite party no.
4 dated 08.01.2022, it is evident that the
Advertisement No. 3 of 2013 was issued
illegally in respect to the Institution in
question.

22. In Paragraph 26 to 27 it has been
stated that a writ petition bearing Writ - A
No. 14975 of 2019 was filed wherein
certain orders were passed on 30.09.2019
with respect to non completion of selection
pursuant to Advertisement No. 3 of 2013.
As representation was not decided, as
ordered by the Court, therefore, Contempt
Application No. 670 of 2020 was filed
which was disposed of on 04.11.2020
based on the statement made by the learned
counsel for the Board that every endeavour
shall be made to complete the selection
process by May, 2021. When the process of
selection was not completed another
Contempt Application No. 3069 of 2020
was filed in which time for completing the
selection
process
was
extended
till
31.12.2021 vide order dated 24.11.2021
and the same was subsequently corrected to
21.01.2022. There is no averment in the
writ petition that the petitioner was eligible
having the requisite qualification and
experience for the post of Principal when
the vacancy occurred or on the relevant
date when the Advertisement No. 3 of 2013
was issued. In fact during the course of
argument it was fairly accepted that on the
relevant date the petitioner did not have the
requisite experience for the post of
Principal. Selection has not been completed
as yet.

23. The following questions arise for
consideration in all these writ petitions:-

1. Whether the petitioners were
eligible
and
within
the
zone
of
consideration for selection and appointment
on the post of Principal which fell vacant in
their Institution under Rule 11-(2)(b) of the
U.P.
Secondary
Education
Services
Selection Board, Rules, 1998 and were
advertised
in
pursuance
to
the
Advertisement
No.
1
of
11
or
3 All. Vivek Kumar Upadhyay Vs. State of U.P. & Ors.
541
Advertisement No. 3 of 2013, as the case
may be ?

2. Whether the eligibility of
petitioners and their claim to be in the zone
of
consideration
for
selection
and
appointment as Principal under Rule
11(2)(b) of the Rules, 1998 is to be
considered with respect to the date fixed for
calling the candidates for interview in
pursuance to the Advertisement No. 1 of
2011 or 3 of 2013, as the case may be, if
not; whether the petitioners have locus
standi to maintain these writ petitions
staking their claim for being considered in
pursuance to the said Advertisements for
appointment under Rule 11(2)(b) of the
Rules, 1998 on the post of Principal of the
Institution wherein they claim to be
working as Ad-hoc Principal as of now ?

24. As is evident from the discussion
made hereinabove, the process of selection
or appointment on the post of Principal by
direct recruitment started either in the year
2011 or in the year 2013.

25. At this stage, it is not out of place
to mention that the post of Principal is to be
filled by direct recruitment and there is no
avenue of regular promotion to the said
post. However, there are two sources from
which direct recruitment is made. One is
from the open market for which candidates
have to apply in pursuance to the vacancies
advertised. Second source is of two senior
most teachers of the institution where the
post of Principal is vacant and the same has
been advertised by the Board. Though,
there are two sources of recruitment but so
far as the selection process and the
assessment of suitability of candidates is
concerned, there is no distinction between
two sources, meaning thereby, candidates
from both the sources have to face the same
selection and their suitability has to be
assessed in the same manner, which has to
be done on the basis of interview only as
there is no written examination prescribed.
Nothing to the contrary could be pointed
out by learned counsel for the parties in this
regard.

26. It is also not out of place to
mention that even if a Lecturer is not
amongst the two senior most Lecturers of
the Institution so as to fall within the ambit
of Rule 11-(2)(b) of the Rules, 1998, even
then, he can very well apply for direct
recruit on the post of Principal in pursuance
to the advertisement issued based on open
market recruitment, if he is otherwise
eligible.

27. It is not the case of any of the
petitioners herein that even though they
were not amongst the two senior most
teachers they had applied for being
considered for direct recruitment from the
open
market
in
pursuance
to
the
Advertisement
No.
1
of
2011
or
Advertisement No. 3 of 2013, as the case
may be. In fact none of the petitioners have
been able to establish that they were
eligible and were fulfilling the qualification
and/or experience, on the relevant date for
being considered in pursuance to the said
selections. In fact, none of the petitioners
have been able to establish before the Court
that they were amongst the two senior most
teachers in the year of recruitment when the
vacancies occurred and were determined
and / or when the requisition was sent and
vacancies were advertised. The facts
clearly show that the factual position is
otherwise, as already discussed.

28. The Uttar Pradesh Secondary
Education Services Selection Board Act,
1982 (hereinafter referred to as ''the Act,
542 INDIAN LAW REPORTS ALLAHABAD SERIES
1982') came into effect from 20.04.1998.
Ever Since then all recruitment to the post
of Principal or Headmaster of an education
institution is to be undertaken by the Board
constituted under the said Act, 1982.

29. Section 2 (k) of the Act, 1982
defines ''Teacher' to mean a person
employed for imparting instruction in an
institution and includes a Principal or a
Headmaster.

30. Section 2 (l) defines ''year of
recruitment' to mean a period of twelve
months commencing from first date of July
of a calendar year.

31. Section 10 of the said Act, 1982,
as existing at the relevant time, read as
under:-

"10. Procedure of selection by
direct recruitment.-(1) For the purpose of
making appointment of a teacher, by direct
recruitment
the
management
shall
determine the number of vacancies existing
or likely to fall vacant during the year of
recruitment and in the case of a post other
than the post of Head of the Institution,
also the number of vacancies to be reserved
for the candidates belonging to the
Scheduled Castes, the Scheduled Tribes
and other Backward Classes of citizens in
accordance with the Uttar Pradesh Public
Services (Reserva- tion for Scheduled
Castes,
Scheduled Tribes
and Other
Backward Classes) Act, 1994, and notify
the vacancies to the Board in such manner
and through such officer or authority as
may be prescribed.

(2) The procedure of selection of
candidates for direct recruitment to the
posts of teachers shall be such as may be
prescribed :

Provided that the Board shall,
with a view to inviting talented persons,
give wide publicity in the State to the
vacancies notified under sub-section (1)."

32. As is evident from the above
quoted provision the Management is
required to determine the number of
vacancies existing or likely to fall vacant
during the year of recruitment which as
defined in Section 2(l) is from first date of
July of a calendar year, obviously till 30
June of the next calendar year. The manner
of notification of vacancies to the Board is
to be such as may be prescribed. The
procedure of selection of candidates for
direct recruitment to the post of teachers
including Principal and Headmasters shall
be such as may be prescribed.

33. The aforesaid prescription is
contained in the U.P. Secondary Education
Services Selection Board Rules, 1998
(hereafter referred as ''the Rules, 1998'). As
per Rule 10 thereof- Principal of an
Intermediate College or Headmaster of a
High School is to be filled by direct
recruitment.

34. Rule 11 of the Rules, 1998 deals
with determination and notification of
vacancies.

35. Sub-rule (1) of Rule 11 of the
Rules, 1982 deals with determination of
vacancies
by
the
Management
in
accordance with Sub-section (1) of Section
10 of the Act, 1982 as quoted hereinabove
and their notification through the Inspector
to the Board in the manner provided
thereafter.

36. As per Sub-rule (2)(a) of Rule 11
of the Rules, 1998 - the statement of
vacancies for each category of posts to be
3 All. Vivek Kumar Upadhyay Vs. State of U.P. & Ors.
543
filled in by direct recruitment including the
vacancies that are likely to arise due to
retirement on the last day of the year of
recruitment, shall be sent in quadruplicate,
in the proforma given in Appendix "A" by
the Management to the Inspector by July 15
of the year of recruitment and the Inspector
shall, after verification from the record of
his office, prepare consolidated statement
of vacancies of the district subjectwise in
respect of the vacancies of lecturer grade,
and group wise in respect of vacancies of
Trained graduates grade. The consolidated
statement so prepared shall, along with the
copies of statement received from the
Management, be sent by the Inspector to
the Board by July 31 with a copy thereof to
the Joint Director. Provided that if the State
Government is satisfied that it is expedient
so to do, it may, by order in writing, fix
other dates for notification of vacancies to
the Board in respect of any particular year
of recruitment.

37. Now, Sub-rule (2)(b) of the Rule
11 of the Rules, 1998 is relevant in this
case, which provides that with regard to the
post of Principal or Headmaster, the
Management shall also forward the names
of two senior most teachers, along with
copies of their service records (including
character rolls) and such other records or
particulars as the Board may require, from
time to time.

38. Now, on a reading of this Clause
(b) of Sub-rule (2) of Rule 11 of the Rules,
1998 what comes out is that while sending
the statement of vacancies for the post of
teachers including the posts of Principal or
Headmaster as is referred in Sub-rule
(2)(a), with regard to the post of Principal
or Headmaster, the Management shall also
forward the names of two senior most
teachers. The use of the word ''also' makes
it abundantly clear that these two names of
senior most teachers for consideration for
selection to the post of Principal or
Headmaster have to be sent along with the
statement of vacancies, which is required to
be sent under Rule (2)(a) of Rule 11 of the
Rules, 1998, by the Management to the
District Inspector of School by July 15 and
by the District Inspector of School to the
Board by July 31. In this context it is
relevant to reiterate that the first day of the
year of recruitment is 1st of July, therefore,
obviously this entire exercise is to be done
by the start of the year of recruitment. The
contention
of
learned
counsel
for
petitioners that the names of two senior
most persons is to be sent by the
Management subsequently as and when
requisitioned by the Board for the purposes
of interview, is thus, not supported from the
scheme of the Rules referred hereinabove.

39. Furthermore, while sending the
statement of vacancies and the name of two
senior most teachers as referred, copies of
their service records including character
roll are also required to be sent to the
Board, meaning thereby, this has also to be
done at the time of sending the statement of
vacancies, under Rule (2)(a) of Rule 11 of
the Rules, 1998 and while sending the
names of two senior most teachers referred
in Clause (b) of Sub-rule (2) of Rule 11 of
the Rules, 1998 and not as and when
required by the Board. The words ''and
such other records or particulars as the
Board may require, from time to time'
need to be considered by this Court as Shri
Sharad Pathak, learned counsel appearing
for the petitioner in one of the writ petitions
submitted that the use of the words ''as the
Board may require, from time to time'
shows that the names of the two senior
most teachers along with their service
record is to be sent by the Management to
544 INDIAN LAW REPORTS ALLAHABAD SERIES
the Board through the D.I.O.S. as and when
the Board requires. This contention with
utmost respect is not correct. The words ''as
the Board may require, from time to time',
have to be read with preceding words -
''and such other records or particulars',
meaning thereby, after the name of two
senior most teachers along with copies of
their service records including character
roll have been sent along with statement of
vacancies, thereafter, if the Board requires
such other records or particulars pertaining
to the said senior most teachers to be sent,
from time to time, then, this additional
record would also be sent to the Board as
required by it. The words ''as the Board
may require, from time to time' have to be
read and understood accordingly. The
contention of Shri Sharad Pathak, learned
counsel for appearing for petitioner in one
of the writ petitions is, thus, rejected. This
Court has no doubt in its mind that the
name of the two senior most teachers along
with
copies
of
their
service
record
including character roll have to be sent
while sending the statement of vacancies,
as
discussed
hereinabove,
and
not
subsequently. After having done so if at
any subsequent time the Board requires any
further records or particulars relating to the
senior most teachers then the same would
be sent. This is how the said Clause (b) of
Sub-rule (2) of Rule 11 of the Rules, 1998
has to be read and understood.

40. Now, from a reading of the
aforesaid provisions of law, as it is evident
that the names of two senior most teachers
is to be sent along with the statement of
vacancies (so called requisition), obviously
the teachers have to be amongst the two
senior most in the said recruitment year at
the relevant time when the statement is
being sent and not thereafter, for the
purpose of Rule 11(2)(a).

41. In this very context it is fruitful to
refer to a Division Bench Judgment of this
Court reported in 1990 (1) UPLBEC 539;
Nand Kishore Prasad Vs. U.P. Secondary
Education
Services
Commission,
Allahabad and Ors. The facts of the said
case were that a vacancy arose on the post
of
Principal
in
the
institution
on
30.06.1986. The petitioner- Nand Kishore
Prasad was the third senior most teacher in
the college at that time. The first senior
most teacher Shri Parashu Ram Upadhyay
retired on 30.09.1987.