Judgment:
Barkat Ali Zaidi, J.
1. The petitioner is working on an honorarium basis as Sanskrit Lecturer with respondent No. 3 Firoz Gandhi College, Rai bareilly since September, 2003. The respondent No. 2 U.P. Higher Education Service Commission conducts examination for recruitment of teachers in colleges. The rules under which examinations are conducted are as follows:
12. Procedure for appointment of teachers: (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void.
(2) The management shall intimate the existing vacancies and the vacancies likely to be caused during the course of the ensuring academic year, to the Director at such time and in such manner, as may be prescribed.
Explanation : The expression 'academic year' means the period of 12 months commencing on July 1.
(3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject wise consolidated list of vacancies intimated to him from all colleges.
(4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regulations:
Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under Sub-section (3):
Provided further that the candidates shall be required to indicate their order of preference for the various colleges, vacancies wherein have been advertised.
13. Recommendation of Cow mission: (1) The Commission shall, as soon as possible, after the notification of vacancies to it under Sub-section (3) of Section 12, hold interview ( with or without written examination) of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be, so far as practicable, twenty five percent more than the number of vacancies in that subject. Such names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination is held.
(2) The list sent by the Commission shall be valid till the -receipt of a new list from the Commission.
(3) The Director shall having due regard in the prescribed manner, to the order of preference if any indicated by the candidates under the second proviso to Sub-section (4) of Section 12, intimate to the management the name of a candidate from the list referred to in Sub-section (1) for being appointed in the vacancy intimated under Sub-section (2) of Section 12.
(4) Where a vacancy occurs due to death, resignation or otherwise during the period of validity of the list referred to in Sub-section (2) and such vacancy has not been notified to the Commission under Sub-section (3) of Section 12, the Director may intimate to the Management the name of a candidate from such list for appointment in such vacancy.
(5) Notwithstanding anything in the preceding provisions whereto abolition of any post of teacher in any college, services of the person substantively appointed to such post is terminated the State Government may make suitable order for his appointment in a suitable vacancy, whether notified under Sub-section (3) of Section 12 or not in any other college, and thereupon the Director shall intimate to the management accordingly.
(6) The Director shall send a copy of the intimation made under Sub-section (3) or Sub-section (4) or Sub-section (5) to the candidate concerned.
2. The respondent No. 2, the commission conducted examination in the month May, 2005 for selection of 25 posts of Sankrit Lecturer. The petitioner also appeared in the examination but was not one of the 25 persons selected.
3. The post on which the petitioner was working in Firoz Gandhi College Rai Bareilly it's vacancy was not inadvertently advertised with the name of the college and city. Subsequently, when this error was discovered, it was rectified in the manner that the candidates who were called for interview on 6.5.2005 or so, were asked to give their choice of this college of Rai Bareilly because Second Proviso of Sub-section 4 of Section 12 above requires to give their choice for the college. In this manner this vacancy has also been filled up and the name of respondent No. 5 who was selected by the Commission his name was recommended by the respondent No. 2 Commission to Respondent No. 1 Director of Education, in consequence whereof, the Director under Sub-section 3 of Section 13 above intimated to the respondent No. 3 Committee of Management, the name of respondent No. 5 Dr. Rajesh Kumar for appointment on the post in question against which the petitioner is working.
4. The petitioner's contention is that there has been violation of Second proviso of Section 12(4) above, inasmuch as the vacancy against which he is functioning, was not advertised in the name of the college and city and was not filled up in this manner as contemplated under Section 12 of the Act and the order of appointment and placement of respondent No. 5 on this post against this vacancy is, therefore, illegal, and, needs to be set aside.
5. We have heard Sri P.S. Baghel, learned Counsel for the petitioner and Sri H.N. Singh and Sri Pradeep Kumar learned Counsel appearing for the respondent No. 2 and the learned Standing for the Respondents.
6. We are of the view that it will not be possible to grant relief to the petitioner in the aforesaid circumstances.
7. The learned Counsel for the petitioner has referred the judgment of Apex Court rendered in the case of Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors. : AIR1998SC1021 wherein it was observed as follows:
12. Having heard learned Counsel for the parties and having gone through the relevant Act and the rules, we find that the aforesaid amendments were brought in to eliminate ad hocism and irregular appointment of teachers. This is also to eliminate favoritism, nepotism and other processes, through which unqualified undesirable persons were appointed excluding meritorious teachers. The proviso to Sub-section (4) of Section 12 provides for wide publicity through advertisement for inviting talented persons for filling up such vacancies, as notified under Sub-section (3). This was keeping in mind that whenever such vacancy occurs selection should be from a larger sphere through wide advertisements which would include large applicants competing. Both adhoc appointment and appointment made for any vacancy not properly advertised limits sphere where it may either as under the old Act to be regularized or under the principle of equity, sympathy to be regularized if a case be made out which erodes the very foundation of a teaching institution by lowering the teaching standard. It is, keeping this objective, the aforesaid amendments in 1992 were brought in. The relevant portion of the Statement of Objects and Reasons of the aforesaid Act in this regard is reproduced below :.
20. As per the scheme of the Act and the aforesaid provisions, for each academic year in question, the management has to intimate the existing vacancies and vacancies likely to be caused by the end of the ensuring academic year in question. Thereafter, the Director shall notify the same to the Commission and the Commission, in turn, will invite applications by giving wide publicity in the State of such vacancies. The vacancies can not be filled except by following the procedure as contained therein. Sub-section (1) of Section 12 has incorporated in strong words that any appointment made in contravention of the provisions of the Act shall be void. This was to ensure no back-door entry but selection only as provided under the said section.
8. It will appear from the judgment of the Apex Court that the appellant was interviewed and succeeded in the examination for the post of Principal but he could not be appointed while in the case in hand, the vacancy has been advertised and included in the total number of seats , though, the name of the college and city has not been advertised and every candidate was asked to give his choice at the time of interview for it. The facts here are, therefore, different and the ratio of the aforesaid judgment will not be applicable.
9. The petitioner's contention that there has been violation of Rules inasmuch as the vacancy against which he is working was not advertised in the name of college and city , is correct but it is to be noticed, that the petitioner was not called for interview as contemplated under Section 13(1) above and did not consequently succeed in the examination. It does not, therefore, provide to him legitimate and sustainable cause of action, because he has not succeeded in the examination. Things would have been different, had he appeared in the interview/examination and succeeded and assigned to some other college.
10. The Court must and does refuse to examine the illegalities in abstract. Even if any illegality has been committed, it will have no consequence so for the petitioner is concerned because he did not succeed in examination. It is, therefore, the last ditch effort by candidate, to obtain through the Court, what he could not achieve on merits, and the Court must decline to do so.
11. It may also be categorically mentioned that the violation of every little Rule does not require redressal. It is only where rights are affected and the consequences and repercussions are grave in nature, that the Court will interfere.
12. In these circumstances, as they arise, the respondent No. 2 was not wrong to adopt the procedure they did to undo the non-observance of Second Proviso of Section 12(4) above because it would have otherwise, caused great upheaval and disruptions, causing unavoidable loss of public time and money.
13. The Petitioner is consequently, not entitled to any relief.
14. Petition dismissed.