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Allahabad High Court · body

2010 DIGILAW 1087 (ALL)

REKHA AGRAWAL v. STATE OF U. P.

2010-04-02

KASHI NATH PANDEY, SUNIL AMBWANI

body2010
JUDGMENT By the Court.—We have heard Shri Ashok Khare, Sr. Advocate assisted by Shri Siddharth Khare for the petitioner. Smt. Archana Singh appears for U.P. Higher Education Service Commission, Allahabad. Learned Standing Counsel appears for the State respondents. 2. The petitioner was appointed as Lecturer in Education in Smt. Vidyawati Mukand Lal Girls Post Graduate College, Ghaziabad (the college) on 1.8.1986. The college is affiliated to Chaudhary Charan Singh University Meerut and is receiving grant in aid from the State Government. In July 1997 the petitioner was sanctioned the designation and pay scale as the Reader in the college. Dr. Manorama Prakash, permanent Principal of the college expired in the year 2003, on which the vacancy on the post of Principal was notified by the management to the Director of Education (Higher Education) U.P. on 12.3.2003. The DHE notified the vacancy to Higher Education Service Commission. The Advertisement No. 36 published by the Commission included the post of the Principal of the college for selections. The petitioner applied and gave first preference for the advertised vacancy of the post of Principal of the college. The DHE by his order dated 27.11.2003 recommended the name of Dr. Aruna Prabha for appointment. The petitioner filed a Writ Petition No. 2702 of 2004 challenging the placement, in which a stay order was granted on 27.1.2004. 3. The Advertisement No. 39 was issued by the U.P. Higher Education Service Commission on 24.2.2005 with stipulation that the candidates, who had applied in pursuance to the Advertisement Nos. 33, 34, 35 and 36 need not apply again. The DHE by his subsequent order cancelled the placement of Dr. Aruna Prabha to the college on 6.8.2005. The U.P. Higher Education Service Commission issued a corrigendum on 23.3.2006, with regard to Advertisement No. 39, specifying that the selections include the posts of Principals of 18 Girls Post Graduate Colleges and that the vacancies in the selections could increase or decrease. 4. In response to the call from the Commission dated 15.5.2008 the petitioner appeared for interview in the U.P. Higher Education Service Commission on 5.6.2008. Before the interview on 5.6.2008 she was required to give preference for five colleges. She protested and stated that she had already given preference for Smt. Vidyawati Mukand Lal Girls Post Graduate College, Ghaziabad in the selections in pursuance to Advertisement No. 36. Before the interview on 5.6.2008 she was required to give preference for five colleges. She protested and stated that she had already given preference for Smt. Vidyawati Mukand Lal Girls Post Graduate College, Ghaziabad in the selections in pursuance to Advertisement No. 36. In the list of 18 colleges given to her for options on 5.6.2008 the name of Vidyawati Mukund Lal Girls Post Graduate College was not included. In the final list published on 2.7.2008 the petitioner was included at Sl.No. 9. Till the time of filing of the writ petition no placement orders were issued. 5. The petitioner is now challenging the Advertisement No. 43 issued by the U.P. Higher Education Service Commission, Allahabad dated 18.7.2008, in which once again the college (Smt. Vidyawati Mukund Lal Post Graduate College, Ghaziabad) has been included for appointment on the post of Principal, after making representation to the DHE on 09.8.2008. She has prayed for quashing the Advertisement No. 43 dated 18.7.2008 in so far it related to the post of Principal of Smt. Vidyawati Mukand Lal Girls Post Graduate College, Ghaziabad and to restrain the respondents from holding selections for the post of Principal of the college. She has also prayed for directing the respondents to issue placement orders for her in pursuance to her selections in the select list dated 2.7.2008, prepared to the Advertisement No. 39, treating the said post as covered by the advertisement and wrongly excluded from Advertisement No. 36. 6. In the counter-affidavit of Shri R.S. Tiwari, Secretary, U.P. Higher Education Service Commission, Allahabad it is stated in para 4 that the petitioner was selected in pursuance to the Advertisement No. 39 as Principal of the college. She is making her claim on the post of Principal of Smt. Vidyawati Mukand Lal Girls Post Graduate College, Ghaziabad; Smt. B.D. Jain Post Graduate College Agra and Shri Krishna Post Graduate College, Azamgarh. These posts were not advertised in the Advertisement No. 39 and have now been advertised in Advertisement No. 43. In para 11 of the counter-affidavit it is stated that the Advertisement Nos. 33, 34, 35 and 36 have been cancelled and all vacancies advertised against said advertisement have also been cancelled, and directions have been sent for new requisition of vacancies. In the Advertisement No. 39 the reference to Advertisement Nos. In para 11 of the counter-affidavit it is stated that the Advertisement Nos. 33, 34, 35 and 36 have been cancelled and all vacancies advertised against said advertisement have also been cancelled, and directions have been sent for new requisition of vacancies. In the Advertisement No. 39 the reference to Advertisement Nos. 33, 34, 35 and 36 was only to facilitate the candidates not to resubmit and deposit the fees and the form again. Their applications were to be treated as applications against the Advertisement No. 39. 7. The Writ Petition No. 2702 of 2004 filed by the petitioner challenging the order dated 27.11.2003 recommending appointment of Dr. Aruna Prabha-respondent No. 6 as Principal of the college was dismissed for want of prosecution on 18.5.2006, and the interim order was vacated. 8. Shri Ashok Khare, learned counsel for the petitioner submits that the post of Principal for the college was duly notified to the Director of Education (Higher Education) as also U.P. Higher Education Service Commission, Allahabad, and was included in Advertisement No. 36. The petitioner had given her first preference for the college. The recommendation for appointment of Dr. Aruna Prabha was stayed by the Court on 27.1.2004, and was ultimately cancelled by the DHE himself on 6.8.2005. Though the placement order dated 27.11.2003 was intimated to U.P. Higher Education Service Commission leading to exclusion of the college for advertisement, the Advertisement No. 39 was issued in supersession of Advertisement Nos. 33, 34, 35 and 36. The exclusion of the college from the advertisement is without any basis. It was only at the time of interview, when the petitioner was required to give her preference, she was told that the college has been excluded from the Advertisement No. 39. The U.P. Higher Education Service Commission has acted wholly arbitrarily and without any justification in excluding the college from Advertisement No. 39. Shri Ashok Khare submits that the details of the colleges in Advertisement No. 36 included Smt. Vidyawati Mukand Lal Girls Post Graduate College, Ghaziabad. The petitioner being fully qualified and eligible had applied for selections. She is Master of Science in Organic Chemistry, Master of Education, M.Phil in Education and holds a Doctorate Degree in Education. She has 25 years teaching experience including 22 years at post graduate level. The placement of Dr. The petitioner being fully qualified and eligible had applied for selections. She is Master of Science in Organic Chemistry, Master of Education, M.Phil in Education and holds a Doctorate Degree in Education. She has 25 years teaching experience including 22 years at post graduate level. The placement of Dr. Aruna Prabha for the college was initially stayed and was later on cancelled by DHE on 6.8.2005. The Advertisement No. 39 dated 24.2.2005 covered 18 posts with stipulation that it was issued after cancelling Advertisement Nos. 33, 34, 35 and 36. The Advertisement No. 36 included the college in question and thus the petitioner did not submit fresh application in pursuance to Advertisement No. 39. He submits that in Advertisement No. 39 the colleges included in Advertisement No. 36 were included and that since the petitioner had already given first preference, she was entitled to be placed and recommended as Principal of the college. In Dr. Yogesh Kumar Gupta v. State of U.P., 1995 (2) ESC 393 (Alld.), a Division Bench of this Court following the Hoshiyar Singh’s case, 1993 Supp. (4) SCC 377; Madan Mohan Singh, AIR 1994 SC 765 ; and Madan Lal and others v. State of J & K and others, AIR 1995 SC 1088 , held that the Director of Higher Education does not have discretion to use the powers under Section 13 (4) of the U.P. Higher Education Service Commission Act, 1980 as amended by U.P. Higher Education Service Commission (Amendment) Ordinance No. 43 of 1991 to exclude the college notified by the management in which the vacancy had arisen. The Director is duty bound to notify it to the Commission for wide publicity to all candidates. 9. In Kamlesh Kumar Sharma v. Yogesh Kumar Gupta, 1998 (1) UPLBEC 743, arising from the aforesaid judgment the Supreme Court held while dismissing the writ petition, that in view of the clear provisions in the Act there is no scope from deviating from mandate and that Sections 12 and 13 lead to inescapable conclusion that appointment on the regular vacancies under Section 12 (2) could only be made by advertisement under the proviso to sub-section (4) of Section 12. The filling up of vacancies under sub-section (4) of Section 13, already advertised, arise only in case the person does not join, or on account of death or resignation. The filling up of vacancies under sub-section (4) of Section 13, already advertised, arise only in case the person does not join, or on account of death or resignation. All the circumstances have to be within the vacancies already advertised and not beyond it. The sphere of sub-section (4) of Section 13, is within the vacancy already advertised and not beyond it. The list so prepared under sub-section (2), shall be valid only till the receipt of new list from the commission, which means that in case there is delay in the next new list and any vacancy occurs on account of unforeseen reasons the said vacancy can be filled up under sub-section (4) of Section 13. The word ‘otherwise’ in sub-section (4) of Section 13 would not permit the filling up of vacancy occurring, which was never notified, and a person in the select list panel, even though not applying for any vacancy could be absorbed. For appointment to be made on a vacancy occurring in the succeeding year for which there is no advertisement under sub-section (4) of Section 12, a person on the panel list of preceding academic year in question, cannot be absorbed or be appointed. The Supreme Court held in para 14 that; “the word ‘otherwise’ has to be read ejusdem generis, that is to say in a group similar to death, resignation, long leave vacancy, invalidation, person not joining after being duly selected. In other words it would be a case of unforeseen vacancies, which could not be conceived under Section 12 (2)”. The Supreme Court further held that while vacancies under Section 13 (4) are unforeseen vacancies, which will fall under the group death and/ or resignation, the word ‘otherwise’ cannot be given the wide and liberal interpretation, which would exclude large number of expected applicants, who could be waiting to apply for the vacancies occurring in the succeeding year in question. 10. The post of Principal in Smt. Vidyawati Mukand Lal Girls Post Graduate College, Ghaziabad had fallen vacant on the death of Dr. Manorama Prakash on 12.3.2003. The vacancy was notified to the DHE and was in turn notified to the U.P. Higher Education Service Commission. It was included in the Advertisement No. 36 dated 14.6.2003 issued by the Commission and in which Dr. Aruna Prabha was selected and recommended for appointment as Principal of the college. Manorama Prakash on 12.3.2003. The vacancy was notified to the DHE and was in turn notified to the U.P. Higher Education Service Commission. It was included in the Advertisement No. 36 dated 14.6.2003 issued by the Commission and in which Dr. Aruna Prabha was selected and recommended for appointment as Principal of the college. Her appointment was stayed in a writ petition filed by the petitioner on 27.1.2004. The writ petition was dismissed for want of prosecution on 18.5.2006, after the DHE had cancelled the placement of Dr. Aruna Prabha on 6.8.2005. The vacancy, therefore, had to be notified again and could not be treated to be an advertised vacancy or vacancy under Section 13 (4) of the Act, or to be included in Advertisement No. 39 published on 24.2.2005, for which the petitioner was selected. The college was excluded from Advertisement No. 39, making it clear that the persons, who had applied for Advertisement Nos. 33, 34, 35, 36 may not apply again. Since the petitioner had applied for Advertisement No. 36, she was given a call to appear in the interviews. She, however, could not be treated to be a candidate again for the college, which was not included in the Advertisement No. 39 dated 24.2.2005. The Secretary of the U.P. Higher Education Service Commission has clearly stated in para 11, of his counter-affidavit that Advertisement Nos. 33, 34, 35 and 36 were cancelled and all the vacancies advertised were also cancelled. The Advertisement No. 39 had notified different vacancies. The condition in this Advertisement allowing the candidates, who had applied in pursuance of Advertisement Nos. 33, 34, 35 and 36 not to apply again only facilitated the candidates not to deposit the fees and form again. The petitioner cannot claim her right to be considered for appointment for the college in pursuance of her selection in the vacancies notified by the Advertisement No. 39. 11. The writ petition is dismissed with no order as to costs. ————