YOGESH KUMAR GUPTA v. STATE OF U P — 1995 DIGILAW 645 (ALL)

PALOK BASU, J. A serious challenge has been extended to the impugned order dated 20-7-1993 passed by the Director of Higher Education, Allahabad making placement of opposite party No. 5 Dr. Kamlesh Kumar Sharma as the Principal, Maharaj Singh College, Saharanpur, in alleged exercise of powers under Section 13 (4) of the U. P. Higher Education Service Commission Act, 1980 (for short, the Act ). The ultimate question arising for consideration would be as to whether the Director is empowered under the Act to pick up a name from the list of candidates sent by the Commission even for fulfilling a post of teacher/principal of a college which vacancy was non-existent when the said list was prepared and which vacancy was never advertised nor accord ed due publicity in accordance with the provisions of the Act. 2. The relevant facts lie in a narrow compass. Maharaj Singh College (for short, the College) is a Post- Graduate Degree College at Saharanpur and is governed by the provisions of the U. P. State Universities Act (for short, University Act) and First Statutes of Meerut University framed under the University Act. One Dr. R. P. Sharma, who was the regular principal of the college retired on 9-7-1992 but worked upto 30-6-1993 and the vacancy accru ed actually on 1-7-1993. In pursuance of the First Statute No. 13-20, the Management of the college decided at its meeting on 22-6-1993 to appoint the petitioner Dr. Y. K. Gupta as officiating principal. A copy of the letter is Annexure 1 to the writ petition, the genuineness of which is admitted to the respondents. It has been stated in paragraph No. 8 that the petitioner took charge on 30-6-1993 from the out-going principal Sri R. P. Sharma. This averment is admitted. 3. The U. P. Higher Education Service Commission, a statutory crea tion under the provisions of the Act, had published an Advertisement No. 18 of 1992 on 20-4-1992 whereby vacancy for thirteen posts of principals in Post-Graduate Colleges were advertised. A very relevant averment exist in para graph No. 13 of the writ petition. "that in the aforesaid advertisement name of the institution of the respondent No. 3 was not advertised and even at that very time no vacancy on the post of principal in the institution was in exis tence". A very relevant averment exist in para graph No. 13 of the writ petition. "that in the aforesaid advertisement name of the institution of the respondent No. 3 was not advertised and even at that very time no vacancy on the post of principal in the institution was in exis tence". The reply of the Director is that "the contents of paragraph No. 13 of the writ petition are not disputed except that, as the petitioner was not working as a principal in a substantive capacity, the vacancy for the principal deemed to exist and as such, attracted the provisions of 13 (4) of the Amended Act, 1992 which calls upon the Director to appoint a Principal on regular basis. " A select list of 13 candidates was published by the Commission on 8-4-1993. The Commission has also sent names of five more candidates being 25% extra candidates as envisaged by Section 13 (1) of the Act. The counter affidavit on behalf of the Commission says : It is significant to men tion that Dr. Kamlesh Kumar Sharma had applied in pursuance of the Adver tisement. No. 18 and he has been found suitable by the Interview Board and he has been placed in the list of successful candidates at serial No. 6. It is pertinent to mention that the list prepared by the Commission is on the basis of merit and the names placed in the said list are also in order of merit. " Further it says" In the instant case, Dr. K. K. Sharma was at the serial No. 6 in order of merit. Thus his name has been recommended for the post of principal in Maharaj Singh Post-Graduate College, Saharanpur. The petitioner has no right to hold the post of principal, as the post was neither advertised nor the Vice-chancellor has given his approval, In fact, no selection has taken place. Thus the appointment of the petitioner as officiating principal is without any autho rity. " (See paragraph Nos. 8,9,10 and 11 of the counter affidavit sworn by Sri J. K. Srivastava on behalf of the Commission. The Director has passed the impugned order dated 20-7-1993, relevant portion of which reads as under. (Translation by Court): "this has reference to the vacancy in the post of principal of your Degree College in the Post-Graduate Scale Rs. 4509-7300 on the retirement of Dr. R. P. Sharma. The Director has passed the impugned order dated 20-7-1993, relevant portion of which reads as under. (Translation by Court): "this has reference to the vacancy in the post of principal of your Degree College in the Post-Graduate Scale Rs. 4509-7300 on the retirement of Dr. R. P. Sharma. In the exercise of powers con ferred by Section 13 (4) of the Act the name of the following candi date is recommended for placement as principal in your Degree College from out of the list of recommended candidates sent by the Commission vide its Resolution No. 403. 2 dated 7-4-1993: Dr. Kamlesh Kumar Sharma, 12/317 Jagdishpuri Gandhi Road, Baraut. The original application of the candidate is enclosed herewith. You are directed to issue appointment letter in accordance with the provisions contained in Section 14 (1) of the Act and send a copy of it to this Office. It is necessary that 21 days time be allowed to the applicant to join. . . . . . . . . . Dr. K. K. Sharma, Director of Higher Education, U. P. Allahabad. " 4. Aggrieved by the aforesaid order the petitioner has filed this writ petition on 20-8-1993, counter affidavits were called and by an interim order, operation of the impugned order dated 20-7-1993 was stayed. The Director himself, a pairokar of the Commission, and, the recommended candidate Dr. K. K. Sharma, have filed counter affidavits to which replies have been given through rejoinder affidavit!. Sri Shailendra, learned counsel for the petitioner, Sri V. K. Shukla, learned counsel for the private respondent, Sri V. B. Singh, learned counsel for the Higher Education Commission and Sri Vineet Saran, learned Addl. Advocate General assisted by Sri R. K. Saxena, learned Standing Counsel on behalf of the Director have been heard at consi derable length for and against this writ petition. Looking at the extreme urgency in the matter, as jointly requested by learned counsel for the parties, this writ petition is being disposed of finally at the admission stage. 5. Before taking up the discussion and consideration of the respective arguments begin, two facts should be noted here. The Act had quite a differently looking Sections 12 to 14 which were completely substituted by U. P. Higher Education Services Commission (Amendment) Ordinance No. 43 of 1991. The aforesaid Ordinance became U. P. Act No, 2 of 1992 and is opera tive from 22-111991. The Act had quite a differently looking Sections 12 to 14 which were completely substituted by U. P. Higher Education Services Commission (Amendment) Ordinance No. 43 of 1991. The aforesaid Ordinance became U. P. Act No, 2 of 1992 and is opera tive from 22-111991. For all practical purposes, therefore, the present case or matters where vacancies have arisen after Ordinance No. 43 of 1991 came into being, shall be governed by the provisions of the Act as amended by U. P. Act No. 2 of 1992. Both parties have extensively relied upon the language used in the amended Sections 12 to 14 of the Act. Repeated reference to the provisions contained in those three sections has been made and, therefore, for ready reference the aforesaid three sections, which will govern the present pro ceedings, are quoted below : "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 ensuing academic year, to the Director at such time and in such man ner, 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 consolidat ed list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of lecherers of a College shall be such, as may be deter mined by regulation : 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. 13. Recommendation of Commission.- (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 list recommending such number of names of candidates found most suitable in each subject as may be, so far as practicable, twenty-five per cent more than the number of vacancies in that subject such names shall be arranged in order of merit shows in the interviews, or in the examination and interviews if an examina tion 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 to 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 duo 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 ap pointment in such vacancy. (5) Notwithstanding anything in the preceding provisions, where to abolition of any post of teacher in any college, services of the par son 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 Sec tion 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. 14. Duty of Management.- (I) The management shall, within a period of one month from the date of receipt of intimation under sub-section (3) or sub-section (4) or sub-section (5) of Section 13, issue appointment letter to the person whose name has been inti mated. 14. Duty of Management.- (I) The management shall, within a period of one month from the date of receipt of intimation under sub-section (3) or sub-section (4) or sub-section (5) of Section 13, issue appointment letter to the person whose name has been inti mated. (2) Where the person referred to in sub-section (1) fails to join the post within the time allowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such parson is otherwise not available for appointment, the Director, shall on the request of the management intimate fresh name from the list sent by the commission under sub-section (1) of Section 13 in the manner prescribed. " Having thus noted the relevant provisions all that now has to be decided is as to whether the petitioners contention that the impugned order would not have been passed and no appointment from out of a list which was prepared much before the present vacancy arose, is correct or respondents contention that the said lists life continues till the receipt of a new list from the Commission should be interpreted to mean that the Director is empowered to direct any name from that list to be appointed as teacher/principal, is correct. 6. Three propositions of law are unquestionable. Firstly, that there shall be equality of opportunity for all citizens in matters relating to employ ment. (Article 16 of the Constitution of India ). Secondly, that Committees of Management are incharge of Educational Institution and have to run it themselves subject to any provision which may be made by relevant laws for regulating its statutory functions. Thirdly, that the provisions of the Act are the last words concerning selection of candidates for vacancies occurring in Degree College or Institution governed by the Act. The analysis of the facts from the petitioners point of view and substance of the arguments may be classified as under : (a) Any and all vacancy (vacancies) existing and likely to be caused iu the academic year, i. e. , between 1st July to 30th June next shall be intimated by the management to the Director. (b) The Director will notify to the Commission subject-wise consoli dated list of vacancies intimated to him from all colleges. (c) The Commission shall give wide publicity to the vacancies notified with a view to inviting talented persons. (b) The Director will notify to the Commission subject-wise consoli dated list of vacancies intimated to him from all colleges. (c) The Commission shall give wide publicity to the vacancies notified with a view to inviting talented persons. (d) The Commission shall hold interview with or without written examination of the candidates as soon as possible after notification of the vacancies to it. (e) A list of suitable candidates for each post subject-wise and merit-wise which will include 25% more than the number of vacancies in that subject shall be recommended by the Commission. The list shall be valid till receipt of a new list from the Commission. (f) The Director will intimate the Management about the candidate from the list prepared by the Commission concerning vacancy inti mated by the management under Section 12 (2 ). On the aforesaid premise it was vehemently argued on behalf of the petitioner that the right to make appointment is absolute with the Committee of manage ment. The management has a right to insist on fulfilling the legal require ments for getting the best person selected for vacancy in the institution run by the management. Likewise, every candidate, may be teacher in the college in which the vacancy for the post of principal arises, would like to compete for the said post if it is duly advertised and publicised by the Commission after vacancy is notified to it by the Committee of Management. In this connection argument proceeds that the provisions contained in Section 13 (2) which save that the list sent by the Commission shall be valid till receipt of a new list from the Commission can and should not mean anything more than the vacan cy occurring in the academic year (1st July to 30th June next ). It was argued that while passing the impugned order the Director has taken recourse to sub section (4) of Section 13 which is wholly inapplicable. 7. Sri Vineet Saran, learned Additional Advocate-General strenuously argued that there is no warrant for the proposition that the list must be con fined for the academic year only. It was argued that while passing the impugned order the Director has taken recourse to sub section (4) of Section 13 which is wholly inapplicable. 7. Sri Vineet Saran, learned Additional Advocate-General strenuously argued that there is no warrant for the proposition that the list must be con fined for the academic year only. He further proceeded to argue that since purpose of bringing about the amendment in Sections 12, 13 and 14 of the Act was to do away with ad hocism in such appointments such provisions have been enacted as may empower the Director to go on making appointment from out of the list prepared and that is the reason that the law empowers the Commission to send 25% more names while recommending the candidates for appointment to the vacant posts intimated to it by the Director. Sri Vineet Saran has tried to reinforce his argument by referring to the provisions of Section 14 and has further argued that in the light of Section 14 the only correct interpretation possible to the provisions contained in Section 13 (2) will be the one he is advocating and therefore, the Director was right in exercising the powers under Section 13 (4) of the Act while passing the impugned order. 8. At this stage one may recall the far-reaching observations of the Honble Supreme Court in Hoshiar Singhs case reported in 1993 Supp (4) SCC 377 but just before that the facts of Hoshiar Singh may be noted. The relevant appointing authority requisitioned only 8 posts from the; relevant Board. In its turn the Board recommended 19 selected candidates out of whom 18 were appointed. Those who were beyond 8, were asked to march out when their appointment was challenged in the High Court. Upholding the High Courts judgment the Honble Supreme Court observed : "the appointment on the additional posts on the basis of such selec tion and recommendation would deprive candidates who were not eligible for appointment to the posts on the last date for submis sion of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts because if the said additional posts are advertised subsequently those who became eligible for appointment would be entitled to apply for the same. The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisi tion was for 8 posts only, was not legally sustainable. " Not only this, the effect of initiation of selection process and its co-relation with the vacancy notified and its effect on future candidates was loudly debated in Madan Mohan Singhs case reported in AIR 1994 SO 765. Only 32 vacancies stood when notified. Merit list of 129 candidates was prepared in the ratio 1 : 4. More than 32 were exhausted which action came up for challenge. Honble Supreme Court observed as under: "where the particular advertisement and the consequent selection process were meant only to fill up 32 vacancies and not to fill up the other vacancies, the merit list of 129 candidates-prepared in the ratio of 1 : 4 on the basis of the written test as well as viva voce will hold good only for the purpose of filling up those 32 vacancies and no further because said process of selection for those 32 vacancies got exhausted and came to an end. If the same list has to be kept subsisting for the purpose of filling up other vacancies also that would naturally amount to deprivation of rights of other candidates who would have become eligible subsequent to the said advertisement and selection process. " 9. Striking resemblance is noticeable on factual basis between the present case and the latest case-law in Madan Lal v. State of J. and K. , AIR 1995 SC 1088 . In paragraph No 24 of the said judgment the Honble Supreme Court has issued following direction :- "in the present case as the requisition is for 11 posts and even though the Commission might have sent list of 20 selected candidates, appointments to be effected out of the said list would be on 11 posts and not beyond 11 posts, as discussed by us earlier. This contention will stand accepted to the extent indicated herein-above. " 10. Relevant Rule in the cited case which talks of selection list is quoted in paragraph No. 23 of the judgment. This contention will stand accepted to the extent indicated herein-above. " 10. Relevant Rule in the cited case which talks of selection list is quoted in paragraph No. 23 of the judgment. It is necessary to quote the said rule :- "security of the list-The list and the waiting list of the selected candi dates shall remain in operation of a period of one year from the date of its publication in the Government Gazette or till it is exhausted by appointment of the candidates whichever is earlier ; provided that nothing in this rule shall apply to the list and the waiting list prepared as a result of the examination held in 1981 which will remain in operation till the list or the waiting list it exhausted. " 11. It has to be noticed that in the aforesaid rule the list could be valid beyond one year or till it was exhausted by appointment of the candi dates mentioned in the list, whichever was earlier, it means that list which would be including names more than the vacancies for which candidates were called therefore, even these candidates who were included in the waiting list could have been appointed even though the total number may have exceeded the actual vacancies when advertised. This exactly is the argument of Sri Vineet Saran by referring to the language used in Section 13 (2 ). 12. The receiving of the new list from the Commission is the outer limit till which the Current list sent by the Commission has to be held operative. It is argued that the sending of the name by the Director may be within the academic year or it may be two academic years or it may be several academic years and the said action will be lawful so long as the current list continues to be in operation. So long as the Commission does not send a new list, the old list would be valid, the argument proceeds. 13. This argument has to be tested logically. When can a "new list" be sent to it by the Commission ? only when vacancies are notified to it by the Director. When can the Director notify vacancy to the Commission ? when the Management intimates vacancy. Therefore, there can never be a new list for an old vacancy. 13. This argument has to be tested logically. When can a "new list" be sent to it by the Commission ? only when vacancies are notified to it by the Director. When can the Director notify vacancy to the Commission ? when the Management intimates vacancy. Therefore, there can never be a new list for an old vacancy. The only contingency when there may be a new list regarding old vacancy would be if the old list losses its authenticity due to corrupt means, it becomes inoperative due to defect in selection or large scale favouritism etc. In the normal circumstances, the old list alone would cover old vacancies. However, even if the old or current is held to be valid for the period, and has to be exhausted within one academic year as is envisaged by a combined reading sub-sections (1) and (2) of Section 12, the argument of Sri Saran may not pose any problem. The reason is that contemplated vacancies are taken note of under Section 12 (1) occurring during the academic year. But, continuing the old list beyond one academic year would be permitting to include the second or many subsequent academic years which will be clearly in violation of the mandatory provisions contained in Section 12 of the Act. In this view of the matter, therefore, the attempt on the part of the respondents to distinguish Madan Lais ruling is futile and the said case is applicable to the facts of the present case. 14. Let it be examined from another angle. If it has to be read that sub-section (2) of Section 13 may include subsequent year or years after the relevant academic year, there may be enough force in the argument on behalf of the petitioner that the said provision then would be in the teeth of the Constitutional mandate contained in Article 16 of the Constitution of India. If, however, the applicability of the aforesaid sub-section (2) of Section 13 is held to be confined to the academic year, the question of its provisions being violative of Article 16 would not arise then. 15. The other emphasis on behalf of the respondents was to the language used in sub-section (4) of Section 13. If, however, the applicability of the aforesaid sub-section (2) of Section 13 is held to be confined to the academic year, the question of its provisions being violative of Article 16 would not arise then. 15. The other emphasis on behalf of the respondents was to the language used in sub-section (4) of Section 13. It was argued that since the said sub section talks of a, vacancy due to death, resignation or otherwise and "such vacancy had not been notified to the Commission under sub-section (3) of Section 12", the Director could pass the impugned order by taking recourse to the said sub-section as in this case vacancy was not notified by the Manage ment. However, the very language shows the intendment of the legislature. "such vacancy has not been notified to the Commission under sub-section (3) of Section 12" indicates a stage before appointment letter is issued to the selected candidate by Management. For example, a candidate is placed by the Director from out of the list recommended by the Commission in some institution. Before he joins and appointment Setter is issued, the candidate dies or sends refusal or resignation letter to Director or the College, or for some reason he is incapacitated from being appointed as a Teacher/principal. There would be no occasion for the Management to intimate any vacancy under Sec tion 12 (1) and, therefore, there would neither by any occasion for Director to notify any vacancy to the Commission under Section 12 (3 ). Moreover, the last clause in sub- section (4) "the Director may intimate to the Management the name of a candidate from such list for appointment in such vacancy" would presume the vacancy as notifying vacancy under sub-section (3) notified earlier to continue and not occasion for notifying vacancy under sub-section (3) of Section 12 shall have arisen in such a case. 16. Normally some more names are recommended by the Commissions or selection Committees alongwith selected candidates to meet the contingency of some of them not joining. Such lists cannot be permitted to continue indefinitely and apply to future vacancies. These type of lists are generally called as "waiting list". Such lists must be made time bound : any other interpretation would leave unguided power with the Director so as not to notify even intimated vacancy for selection by the Com mission. Such lists cannot be permitted to continue indefinitely and apply to future vacancies. These type of lists are generally called as "waiting list". Such lists must be made time bound : any other interpretation would leave unguided power with the Director so as not to notify even intimated vacancy for selection by the Com mission. If the argu ment advanced by respondents is accepted, it will lead to preposterous results. While a Management may be referring a vacancy to the Director abiding by the mandate of Section 12, the Director may not notify the said vacancy under Section 12 (3) by taking recourse to the provisions contained in Section 13 (4) because his discretion in not notifying under Sec. 12 (3) may be permissible. Such an arbitrary action of Director cannot be protected. 17. It may be noted here that if the Director and the Commission work with the normal time schedule, there would not arise any occasion for the Management to make any ad-hoc appointment. Moreover, under the present scheme the Director and the Commission are expected to act with speed and avoid red-tapism. 18. The other argument of the learned Addl. Advocate General is based upon the provision of Section 14 (2) of the Act, These provisions contemplate a situation where an appointment letter is issued and/or extended time for joining is allowed, but the candidate does not join. In that case the Management will intimate the Director and, in its turn the Director will intimate a fresh name from the list sent by the Commission under Sec tion 13 (1 ). This contingency must happen within the academic year because time limit for asking the candidate to join is only one month as provided in sub-section (1) of Section 14. These provisions, therefore, support the argu ment of the petitioner rather than that after respondents. On complete analy sis it has to be held that sub-section (2) of Section 14 permits the use of the existing list by the Director after appointment letter was issued by the Management and the candidate fails to join whereas Section 13 (4) permits the using of the lists by the Director when a candidate is unable to join because of death, resignation or otherwise even prior to appointment letter is issued. Therefore, the words "such vacancy has not been notified to the Commission under sub-section (3) of Section 12" have only been used to indicate a stage before the Committee of Management uses its own power under Section 12 (1) to notify a vacancy upon which along is dependent the Directors notification to the Commission for making selection of the candidate for the said vacancy. 19. In view of the aforesaid discussions there was no occasion for the Director to use the powers under Section 13 (4) of Act while issuing the impugned order. A regular vacancy has arisen after retirement of the erstwhile principal on his attaining the age of superannuation. Such regular vacancy must have to be intimated by the management to the Director. Assum ing that by some other method the Director has come to know of a vacancy coming into existence, the Director will be duty bound to notify it to the Commission for advertising the said vacancy with wide publicity so that all candidates who may apply for that vacancy, ae not debarred from exercising their constitutional right of being considered foe the said vacancy. The Director has wrongly taken recourse to recommending name of opposite-party No. S, Dr. K. K. Sharma in short-cut-method which is not permissible under the law. Moreover, as noted earlier the advertisement No. 18 of 1992 was published on 20-4-1992 whereas vacancy for the post of Principal in the College was created on 1-7-1993. It is impossible to hold that the list of candidates submitted by the Commission on 8-4-1993 which admittedly was concerning the vacancies as were notified under Section 12 (3) could be used beyond that academic year for filling up a vacancy coming into existence in the next academic year or two. 20. It may be mentioned here that several other arguments concerning the University Act, its provisions, the First Statutes and Ordinances concern ing Meerut University were sought to be raised but since the impugned order is patently illegal, no other point needs be gone into. 21. The conclusion is irresistible that unless a vacancy is notified and advertised, there cannot be any selection against the vacancy and nothing should be permitted to be done to thwart the rights of citizens to compete for the said vacant post and also the right of the Management to have the best candidate possible for the said vacant post. 22. The conclusion is irresistible that unless a vacancy is notified and advertised, there cannot be any selection against the vacancy and nothing should be permitted to be done to thwart the rights of citizens to compete for the said vacant post and also the right of the Management to have the best candidate possible for the said vacant post. 22. In the result, this writ petition succeeds and is allowed. The impugned order dated 20-7-1993 (Annexure-6 to the writ petition) is quashed. It will be open to the Director to notify the vacancy to the Commission in accordance with law which will after due publicity make recommendation in accordance with law for appointment as Principal of the College. The parties will bear their own costs. Petition allowed. .