The Allahabad High Court has allowed an appeal against the stay of the single bench order on the allocation of selections from the Higher Education Service Selection Commission, Prayagraj, for the post of Assistant Professor B.Ed in degree colleges of the state and has returned the matter to the single bench for fresh consideration.
The Division Bench of Justice Sunita Agarwal and Justice Vikram D. Chauhan passed this order while hearing a Criminal Appeal filed by Rakesh Kumar Yadav.
The special appeal has been filed by Rakesh Kumar Yadav, who claims to be a selected candidate for appointment to the post of Assistant Professor (B.Ed.), selection of which has been conducted by the respondent no 2, the UP Higher Education Service Commission, UP, Prayagraj.
The challenge is to the order dated 31.5.2022 passed by the Single Judge of the Court in Writ-A No 3890 of 2022 whereby the entire select list has been put to halt with the direction that the posts of Assistant Professor (B.Ed.) shall not be allotted to colleges in UP.
The application seeking leave to maintain the special appeal against the order dated 31.5.2022 passed in the writ petition is hereby allowed.
Prabhakar Awasthi, counsel appearing for the appellant, submitted that the order dated 31.5.2022 restraining the respondents /Commission to fill up the posts of Assistant Professor (B.Ed.), by not allotting colleges to them is clearly illegal, inasmuch as, the select list prepared by the Commission had not been put to challenge in the writ petition. No such relief has been sought. The only relief in the writ petition was to issue a mandamus directing the respondent Commission to entertain the objections raised by the petitioner with regard to the correctness of seven questions and further to correct/amend the answer key in relation to seven questions by deciding the objections of the petitioner.
Further relief was to award 14 marks to the petitioner by allotting two marks for each question by deciding the objections of the petitioner and to declare him as a selected candidate.
The order dated 11.4.2022 passed by the Single Judge has been placed before the High Court to submit, by the counsel for the Commission, that one post has been kept vacant in the final result declared by the Commission in view of the direction issued by the Single Judge order dated 11.4.2022.
It is then argued that all objections to the correctness of the questions, filed within the time prescribed by the Commission were placed before the expert committee which had examined them and the report of the expert committee has been brought on record of the counter affidavit filed on behalf of the Commission.
By the order dated 11.4.2022, the Single Judge, however, called an independent expert report of the expert committee, nominated by the Vice Chancellor of the University, which was filed before the Single Judge on 31.5.2022, when the order impugned had been passed.
The submission of the counsel for the appellant is that there are two expert reports on record. Without evaluating both the expert reports independently, it was not open for the Single Judge to form a definite opinion as to the correctness of the answers/questions. The direction to the Commission to revisit the answers to the questions and also revisit the result of the selection, therefore, could not have been issued. The submission is that the counter and rejoinder affidavits have been exchanged between the parties and the final decision on the prayer made by the petitioner about the correctness of seven questions is to be taken in the writ petition on the perusal of the material before the Single Judge. There was no occasion for the Single Judge to take such a decision at the interim stage. Further, while implementing the selected candidates in the writ petition, no interim order could have been passed restraining the Directorate to allot the colleges to the selected candidates pursuant to the select list finalized by the Commission, in absence of challenge to the selection.
The Court observed,
The submissions of the counsel for the appellant are found to have substance, inasmuch as, all the facts noted above brought before the Court, have not been noted by the Single Judge in the order dated 31.5.2022 while giving direction to the Commission to revisit the answers to the questions and the result; as also to the other respondents not to allot colleges to the selected candidates.
As noted above, the prayer made in the writ petition was to issue a mandamus to entertain and decide the objections of the petitioner, correct/amend the answer key of seven questions, allot him marks and declare as a selected candidate. The prayer in the writ petition has not been amended to challenge the select list.
Further, the Single Judge has recorded in the order itself that the expert opinion of the experts of the University of Allahabad is not supported by any supporting material.
“In view of the said finding recorded by the Single Judge on perusal of the expert report dated 14.5.2022 as also the fact that the another expert report about the disputed questions has been brought on record by the Commission, in our considered opinion, it was not open for the Single Judge to issue both the directions, i.e (i) to revisit the disputed questions and also to revisit the result and (ii) to restrain the respondents from filling up the posts from the selected candidates by not allotting colleges to them, that too at the interim stage”, the Court further observed while allowing the special appeal.
“In view of the aforesaid, while quashing the order dated 31.5.2022 passed by the Single Judge, the matter is relegated to the Single Judge for passing a fresh order after perusal of the record independently without being influenced by any of the observations made hereinabove.
It goes without saying that we have not expressed any opinion on the interim order dated 11.4.2022 passed by the Single Judge whereby one post has been kept vacant,” the order reads.
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