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2009 DIGILAW 2076 (ALL)

RAMA SHANKER RAI v. STATE OF U. P.

2009-05-06

JANARDAN SAHAI, Y.K.SANGAL

body2009
JUDGMENT JANARDAN SAHAI and Y.K. SANGAL, JJ.--Dr. Rama Shanker Rai, petitioner in Civil Misc. Writ Petition No. 17788 of 2009 was selected by the U.P. Higher Education Services Commission, Allahabad (hereinafter referred as the 'Commission') for the post of Principal in Post Graduate College. It appears that the petitioner had given an option for his placement before the Commission. In the list of choice he had given the name of Feroze Gandhi Post Graduate College, Raebarelly at Serial No. 3 and that of Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad at Serial No.4. It appears that Dr. Narendra Kumar, who was higher up in the merit list as against the petitioner, was given placement at Feroze Gandhi Post Graduate College, Raebarelly. The petitioner was, therefore, given placement at Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad. Later the Committee of Management, Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad filed Civil Misc. Writ Petition No. 22815 of 2009 challenging the placement of the petitioner in its college on various grounds. Their case is that they are not ready to take the petitioner in their institution as the petitioner is not a desirable candidate as there are some disciplinary proceedings pending against him in D.A.V. Post Graduate College, Gorakhpur, where the petitioner was working. It is also said that no proper 'No objection Certificate' had been taken by the petitioner from the Manager of D.A.V. Post Graduate College, Gorakhpur. 2. It appears that subsequently Dr. Narendra Kumar Singh resigned and the petitioner claims for being given placement in Feroze Gandhi Post Graduate College, Raebarelly, as he was one of the selected candidates in the panel and none s higher to the petitioner in merit who may have opted for Feroze Gandhi Post Graduate college, Raebarelly. Indeed, on this point, learned Counsel for the petitioner and learned Standing Counsel are on common ground. The petitioner had filed Writ Petition No. 34920 of 2008 (Rama Shanker Rai v. State of U.P. and another). In pursuance of certain directions made in that writ petition a policy was prepared by the Director of Higher Education regarding the placement of the selected candidates. The petitioner had filed Writ Petition No. 34920 of 2008 (Rama Shanker Rai v. State of U.P. and another). In pursuance of certain directions made in that writ petition a policy was prepared by the Director of Higher Education regarding the placement of the selected candidates. The learned Standing Counsel relies upon Clause (e) of the policy, which is quoted below :- "(e) That in case no advertised vacancy is available for the last one or some candidates, the Director, Higher Education is not bound to give placement unless under section 13 (4) the vacancy becomes available again. Placement under section 13 (4) shall be made strictly in accordance with the merit amongst the left-over candidates of the selected list." 3. Section 13 (4) of the U.P. Higher Education Service Commission Act, 1980, reads as under:- "13. Recommendation of Commission :- (1) ..... (2) ..... (3) ..... (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 Commissions 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." 4. A Division Bench of this Court has held in the case of Dr. M.C. Gupta v. Director, Higher Education, U.P. and others,1 that where a non-scheduled vacancy contemplated in sub-rule (4) occurs, the post can be filled up from the panel of the selected candidates. 1. 2001 (2) UPLBEC 1435 . 5. The contention of learned Standing Counsel is that left candidates are such candidates, who have not been given placement. It is also contended that there is no clear refusal by the Committee of Management of Lajpat Rai Post Graduate College for taking the petitioner in their institution. In paragraph 23 of the writ petition of Dr. Rama Shanker Rai, it is alleged that the petitioner Dr. Rama Shanker Rai had sent two letters dated 5.2.2009 and 10.2.2009 to the Committee of Management of Lala Lajpat Rai Post Graduate College, Sahibabad but the petitioner was not given any joining in pursuance of the placement order. In paragraph 23 of the writ petition of Dr. Rama Shanker Rai, it is alleged that the petitioner Dr. Rama Shanker Rai had sent two letters dated 5.2.2009 and 10.2.2009 to the Committee of Management of Lala Lajpat Rai Post Graduate College, Sahibabad but the petitioner was not given any joining in pursuance of the placement order. In paragraph 31 of the writ petition, it is alleged that the petitioner had also approached the Director of Higher Education by means of letters dated 16.2.2009 and 21.3.2009 for enforcement under section 15 (1) of the order of placement and it is also alleged in para 32 that the petitioner had also personally met the Director of Higher Education but no action was taken. These facts have not been specifically controverted in the counter-affidavit. On the facts of this case, we find that the Director of Higher Education has not been able to secure the joining of the petitioner. It is not in dispute that there is no person higher in merit than the petitioner who may have opted for Feroze Gandhi Post Graduate College, Raebarelly. The Committee of Management, Lajpat Rai Post Graduate College has filed a Writ Petition No. 22815 of 2009 wherein it has challenged the placement of Dr. Ram Shanker Rai in their institution. It is clear, therefore, that the Committee of Management of Lajpat Rai Post Graduate College is resisting the placement of the petitioner in their institution. Sri Vip in Singh, who is representing the committee of management of Feroze Gandhi Post Graduate College, Raebarelly states that the committee of management has no object in taking in the petitioner. In the peculiar facts of this case, it appears to us that it is appropriate that petitioner may be given placement in Feroze Gandhi Post Graduate College, Raebarelly. The Director of Higher Education, U.P., Allahabad may issue placement order in favour of the petitioner without any delay. 6. The Writ Petition No. 17788 of 2009 of Dr. Rama Shanker Rai is allowed. 7. Sri P.S. Baghel, learned Counsel representing the petitioner in Civil Misc. Writ Petition No. 22815 of 2009, states that in view of the decision in Civil Misc. Writ Petition No. 17786 of 2009, he does not press the writ petition of the committee of management and writ petition may be dismissed as not pressed. 8. Civil Misc. 7. Sri P.S. Baghel, learned Counsel representing the petitioner in Civil Misc. Writ Petition No. 22815 of 2009, states that in view of the decision in Civil Misc. Writ Petition No. 17786 of 2009, he does not press the writ petition of the committee of management and writ petition may be dismissed as not pressed. 8. Civil Misc. Writ Petition No. 22815 of 2009 is, therefore, dismissed as not pressed. W.P. No. 22815/09 Dismissed. W.P. No. 17788/09 Allowed.