JUDGMENT Hon'ble Mrs. Sunita Agarwal, J.—By means of a writ petition No. 30279 of 2004 one Dr. Hira Lal Ram, prayed for mandamus commanding the respondent No. 5 i.e. Committee of Management, G.D. Binani Post Graduate College Mirzapur to permit the petitioner to function as principal of the college and to pay his salary regularly on the post of principal as and when it falls due. Notices were issued on the said writ petition on 4.8.2004. The petition was dismissed for non prosecution by order dated 25.7.2012 passed by Division Bench comprising of Hon’ble Mr. Justice Satya Poot Mehrotra and Hon’ble Mr. Justice Het Singh Yadav. The present writ petition No. 32484 of 2004 was filed by the Management of the College, namely, G.D. Binani Post Graduate College, Mirzapur, challenging the order passed by the Joint Director of Education(Higher) Directorate of Higher Education, U.P. Allahabad whereby respondent No. 3 Joint Director of Education (Higher) directed the petitioner, Committee of Management to allow the respondent No. 5, Dr. Hira Lal Ram to join on the post of Principal in the Institution otherwise action would be taken under Sections 57 and 58 of U.P. State Universities Act, 1973, for appointment of authorised controller. 2. The present writ petition filed by the Management remained pending after notices were issued on 13.8.2004 by this Court. A counter-affidavit on behalf of respondent No. 5 i.e Dr. Hira Lal Ram was filed on 3.5.2012 to which the rejoinder-affidavit was filed on 17.5.2012. Other affidavits were also filed to bring on record the subsequent development occurred during pendency of the writ petition. The State, i.e. respondent Nos. 1,2, and 3 filed their counter-affidavit on 24.5.2012 in support of the contention of the respondent No. 5 3. This case has a chequered history. The respondent No. 5 Dr. Hira Lal Ram had applied in pursuance of the advertisement No. 23 issued by the U.P. Higher Education Services Commission Allahabad for the post of Principal. His name was recommended for appointment at Handia Post Graduate College Handia, Allahabad. He again applied in response to advertisement No. 24 for the appointment on the post of principal and was recommended for appointment in Udit Narain Post Graduate College, Padrauna, District Kushinagar. Dr. His name was recommended for appointment at Handia Post Graduate College Handia, Allahabad. He again applied in response to advertisement No. 24 for the appointment on the post of principal and was recommended for appointment in Udit Narain Post Graduate College, Padrauna, District Kushinagar. Dr. Hira Lal Ram joined as principal at Udit Narain Post Graduate College, Padrauna, District Kushinagar on 6.7.1999 and without submitting his resignation at Udit Narain Post Graduate College, Padrauna, District Kushinagar, he joined as Principal at Handia Post Graduate College, Handia on 14.3.2000. In the meantime, in pursuance of the advertisement No. 25 for the post of principal he was selected and recommended for the appointment in G.D. Binani Post Graduate College, Mirzapur. By letter dated 30.4.2001, Director of Higher Education, Allahabad informed the petitioner management that the name of Dr. Hira Lal Ram has been recommended for appointment as principal in the institution. Again in pursuance to the letter dated 5.2.2002 sent by the Director of Higher Education, Allahabad petitioner management issued appointment letter dated 17.6.2002 to Dr. Hira Lal Ram appointing him to the post of Principal on probation for a period of one year from 2.7.2002. Dr. Hira Lal Ram was directed to join duty by letter dated 2.7.2002 and information to this effect was also given to the Director of Higher Education, Allahabad by another letter issued on 17.6.2002. 4. Respondent No. 5 Dr. Hira Lal Ram in response to the appointment letter dated 17.6.2002 sought two months time to submit his joining as principal in the college by letter dated 29.6.2002. Again by order dated 26.9.2002, Director of Higher Education asked the petitioner management to ensure the compliance of the order dated 30.4.2001, whereby Dr. Hira Lal Ram was recommended for appointment to the post of principal in the institution. A reply dated 8.10.2002 was given by the Management to Director of Higher Education that respondent No. 5 has been informed to join the institution, he however,sought two months’ time to join which had also expired on 31.8.2002. However, no information was received by the management from the respondent No. 5. The respondent No. 5 was also informed about the order passed by the Director, Higher Education, U.P. Allahabad and copy of the order dated 26.9.2002 was supplied to him alongwith the communication dated 4.10.2002/8.10.2002. Dr. However, no information was received by the management from the respondent No. 5. The respondent No. 5 was also informed about the order passed by the Director, Higher Education, U.P. Allahabad and copy of the order dated 26.9.2002 was supplied to him alongwith the communication dated 4.10.2002/8.10.2002. Dr. Hira Lal Ram in response to the letter dated 29.6.2002 by the Director Higher Education, Allahabad sent a reply vide letter dated 8.10.2002 and prayed that he may be allowed at least three months’ time to submit his joining at petitioner college, failing which his placement in the college and appointment letter issued by the management may be cancelled. 5. The respondent No. 5, Dr. Hira Lal Ram did not submit his joining even after expiry of period of three months. As a result of it, letter dated 5.8.2003 was sent by the petitioner management to the Director of Higher Education praying that placement of Dr. Hira Lal Ram as principal of the institution be cancelled and fresh requisition sent by the management be accepted for selection and appointment of another candidate on the post of principal by adopting procedure for appointment. 6. In the meantime, officiating principal of the petitioner institution filed writ petition before this Court to allow him to function on the post of principal The said writ petition was dismissed vide order dated 16.12.2003 and after the said writ petition was dismissed Dr. Hira Lal Ram wrote a letter to the Director of Higher Education, Allahabad dated 3.2.2004 stating therein that he cannot continue in the Udit Narain Post Graduate College, Padrauna, District Kushinagar and after the order passed by this Court in the writ petition filed by the Officiating Principal, he may be relieved from Udit Narain Post Graduate College, Padrauna, District Kushinagar and order be passed for his joining at the petitioner’s college. The respondent No. 5 Dr. Hira Lal Ram further sent a letter dated 1.6.2004 stating therein that in compliance of the order dated 16.12.2003 passed by this Court he was present in the office of the Manager of the Committee of Management on 1.6.2004 at 10 a.m. to submit his joining. The respondent No. 5 Dr. Hira Lal Ram further sent a letter dated 1.6.2004 stating therein that in compliance of the order dated 16.12.2003 passed by this Court he was present in the office of the Manager of the Committee of Management on 1.6.2004 at 10 a.m. to submit his joining. Petitioner-Management in response to the letter of respondent No. 5 dated 1.6.2004 replied that he should await the decision of the Committee of Management as request has been made for fresh appointment and fresh requisition has been sent to the Committee of Management to make appointment on the post of principal in the college for the reason that respondent No. 5 had failed to join from 2001 till 31.5.2004. 7. In the meantime, the Manager of the Committee of Management of Udit Narain Post Graduate College, Padrauna, District Kushinagar wrote a letter dated 16.6.2004 to the Director of Higher Education, U.P. Allahabad that respondent No. 5 has been found guilty of various irregularities including financial embezzlement and inquiry is to be conducted against him, therefore he may not be granted permission to join at another college namely, G.D. Binani Post Graduate College, Mirzapur or Handia Post Graduate College, Handia. The permission was also sought for to initiate High level inquiry against Dr. Hira Lal Ram. The respondent No. 5 Dr. Hira Lal Ram on 17.6.2004 sent a letter to the petitioner with the prayer to handover the charge of principal in the institution. Again letter dated 23.6.2004 was sent by Hira Lal with the same request. The joint Director of Education (Higher), Directorate of Higher Education, U.P., Allahabad passed an order dated 3.7.2004 and directed the Committee of Management to allow Dr. Hira Lal Ram to join within a period of 21 days from issuance of the said letter,otherwise, proceedings/inquiry would be initiated against the Management in pursuance of the provision of Sections 15 and 25 of the U,P. Higher Education Commission Act 1980 and Sections 57 and 58 of State Universities Act. 8. From the records, it may be seen that no interim order was passed by this Court,however, Dr. Hira Lal Ram respondent No. 5 did not join the post. It appears that he again persuaded the Director of Higher Education U.P. Allahabad to pass an order dated 6.2.2008 directing the Management to allow him to join, otherwise, action would be taken against the Management. Hira Lal Ram respondent No. 5 did not join the post. It appears that he again persuaded the Director of Higher Education U.P. Allahabad to pass an order dated 6.2.2008 directing the Management to allow him to join, otherwise, action would be taken against the Management. The order passed by the Director of Higher Education, U.P. Allahabad dated 6.2.2008 has been brought on record by filling supplementary counter-affidavit dated 17.9.2012 by Dr. Hira Lal Ram, respondent No. 5. 9. Petitioner has brought on record that during the pendency of the writ petition, respondent No. 5, Dr. Hira Lal Ram was placed under suspension vide order dated 26.2.2011 passed by Committee of Management of Udit Narain Post Graduate College, Padrauna, District Kushinagar. 10. Challenging the suspension order, writ petition No. 55514 of 2011 has been field. The record of the said writ petition was also called for. The prayer made in the writ petition shows that suspension order dated 26.2.2011 passed by the Committee of Management, Udit Narain Post Graduate College, Padrauna District Kushinagar has been approved by the Vice-Chancellor of the Pt. Deen Dayal Upadhyay Gorakhpur University, Gorakhpur by order dated 4.7.2011. Both the orders dated 26.2.2011 and 4.7.2011 are under challenge in writ petition No. 55514 of 2011. It has further been brought on record that no interim order has been passed by this Court in pending writ petition staying effect and operation of the suspension order passed against respondent No. 5. However, Director of Higher Education, U.P. Allahabad passed an order dated 7.5.2012 giving direction to the petitioner, management to ensure the joining of the respondent No. 5, failing which action would be taken against it. Further order was passed by the Regional Higher Education, Varanasi on 24.5.2012, to ensure the compliance of the order passed by the Director of Higher Education, U.P. Allahabad dated 7.5.2012. 11. In the meantime, respondent No. 5 again tried to submit his joining on 10.5.2012. The petitioner-management wrote a letter dated 25.5.2012 /26.5.2012 explaining the complete facts and circumstances of the case bringing on record that no extension of time ever given to respondent No. 5 for joining in the petitioner institution. Respondent No. 5 did not join the institution on his own and as such his rights are extinguished in pursuance of the provisions of Sections 12,13 and14(4) of the U.P. Higher Education Services Commission Act 1980. Respondent No. 5 did not join the institution on his own and as such his rights are extinguished in pursuance of the provisions of Sections 12,13 and14(4) of the U.P. Higher Education Services Commission Act 1980. Despite fresh requisition sent by Committee of Management, Director of Higher Education, U.P., Allahabad passed an order dated 10.7.2012 whereby recommendation has been made to the State Government to initiate action against the petitioner-management under Sections 57(2) and 58 of the State Universities Act, 1973. 12. Learned counsel for the petitioner while bringing to the notice of this Court various orders passed by the Director of Higher Education, U.P. Allahabad, Committee of Management and letters sent by the respondent No. 5, submits that respondent No. 5 is guilty of not joining the institution, despite letter of appointment was issued by the Committee of Management as early as on 17.6.2002 asking him to join by 2.7.2007. The respondent No. 5 kept on seeking time to join the institution and in 2004 came into action after dismissal of the writ petition filed by the Officiating Principal. Thereafter he kept silent and persuaded the Director of Higher Education again in the year 2008 and 2012 for joining the petitioner institution. He further submits that earlier respondent No. 5 was suspended on 24.5.2005 though the said suspension order was stayed by this Court and later on disapproved by the Vice-Chancellor. However, another suspension order dated 26.2.2011 passed by the Committee of Management of Udit Narain Post Graduate College, Padrauna, District Kushinagar has been approved by the Vice-Chancellor on 4.7.2012. In the said circumstances Director of Higher Education could not have passed the order dated 7.5.2012 asking the petitioner management to allow the joining of the respondent No. 5 and further order dated 10.7.2012 recommending the State Government for taking action against the Management. These two orders clearly indicate that they were passed at the instance of respondent No. 5. 13. This apart, learned counsel for the petitioner further submits that in view of the changed circumstances and the facts that respondent No. 5 joined the institution namely, Udit Narain Post Graduate College, Padrauna, District Kushinagar on 6.7.1999, his continuance therein as permanent principal and further suspension pending inquiry, order passed by the Joint Director of Education dated 3.7.2004 and further orders asking the Management to allow Dr. Hira Lal Ram to join the post of principal in the petitioner college cannot be sustained. He categorically submits that in view of the subsequent development and that facts brought on record it is clear that respondent No. 5 was never interested in joining the institution but was interested in keeping his lien on the post of principal in the institution. He further drawn attention of the Court to Section 14(2) of the U.P. Higher Education Services Act 1980 and submits that in case, a person who has been recommended for appointment against the vacancy intimated by the Management fails to join the post within time allowed in the appointment letter or within such extended time as the management may allow in this behalf or where such person is otherwise not available for the appointment, the Director, shall on the request of the management intimate fresh name from the list sent by the Commission. 14. Admittedly respondent No. 5 did not join the post within time allowed by the management and sought extension from management as well as Director of Higher Education, U.P. Allahabad. The extension was never granted, however, he kept reviving the matter from time and again and approached the Director at his own convenience. Director of Higher Education, U.P. Allahabad despite categorically written letter sent by Committee of Management dated 5.8.2003 that placement of respondent No. 5 be cancelled and post be advertised in pursuance of the fresh requisition sent by it as respondent No. 5 failed to join the post within time allowed,passed orders against the petitioner for taking action under the Act and recommended to State Government for action under State Universities Act. 15. Despite direction given by Director of Higher Education, U.P. Allahabad and the Committee of Management as is apparent from the record that respondent No. 5 by letter dated 8.10.2002 sought three months time for joining from the Director Higher Education U.P. Allahabad and even after expiry of the said period he did not join. Only after dismissal of the writ petition in the year 2003 he came into action and tried to submit his joining on 1.6.2004, which was rightly not allowed by the management. 16. Only after dismissal of the writ petition in the year 2003 he came into action and tried to submit his joining on 1.6.2004, which was rightly not allowed by the management. 16. Refuting the submissions made by the learned counsel for the petitioner, learned counsel for the respondent No. 5 submits that after order of placement dated 30.4.2001 issued by the Director of Higher Education, U.P. Allahabad, petitioner-management did not issue appointment letter. The appointment letter was issued on 17.6.2002 i.e. after period of almost 14 months. By that time respondent No. 4 was working as principal at Udit Narain Post Graduate College, Padrauna, District Kushinagar and was entrusted with great responsibility, he could not have left the institution at that point of time as some inquiry was going on under his supervision. He further submits that respondent No. 5 by detail letter dated 8.10.2002 explained the circumstances under which he could not have left the institution namely, Udit Narain Post Graduate College, Padrauna, District Kushinagar, and, therefore, sought three months time so that inquiry could be completed. He further submits that in any case petitioner management could not have restrained respondent No. 5 from joining as principal as he was regularly selected principal in pursuance of the advertisement No. 25 issued by U.P. Higher Education Services Commission, Allahabad. The order passed by the Director of Higher Education, U.P. Allahabad was in conformity with provisions of U.P. Higher Education Services Commissions Act 1980.The subsequent orders dated 7.5.2012 and10.7.2012 are not under challenge in the present writ petition. Respondent No. 5 is entitled to join the post of the principal in the petitioner college. The writ petition filed by him for mandamus deserves to be allowed and the writ petition filed by the Management for quashing the order passed by the Director of Higher Education dated 3.7.2004 deserves to be dismissed. 17. Be that as it may it is apparent from the record that the respondent No. 5 though was recommended and appointed in the petitioner college in the year 2002, however prior to his recommendation and appointment in the petitioner college he had already joined the institution namely Udit Narain Post Graduate College, Padrauna, District Kushinagar on 6.7.1999 and was working there on the post of principal. It is clear from the record that despite letter of appointment issued by the Committee of Management, G.D. Binani Post Graduate College, Mirzapur respondent No. 5 did not join and sought extension and made request to allow him to continue in Udit Narain Post Graduate College, Padrauna, District Kushinagar. 18. Admittedly, respondent No. 5 has been placed under suspension by order dated 26.2.2011 passed by the Committee of Management, Udit Narain Post Graduate College, Padrauna, District Kushinagar and said order has been approved by the Vice-chancellor of the University. 19. The writ petition challenging the order as well as approval order passed by the Vice-Chancellor is pending consideration before this Court. 20. In view of the peculiar facts and circumstances of the case, respondent No. 5 cannot be allowed to join the institution namely G.D. Binani Post Graduate College, Mirzapur. The impugned order dated 3.7.2004 passed by the respondent No. 3 Joint Director of Education (Higher), Directorate of Higher Education, U.P., Allahabad is hereby quashed. 21. Further in view of the fact that post was requisitioned and advertised against which appointment was made as early as in the year 2001. However, till date on account of non joining of selected candidate by the Commission, officiating principal is working in the institution. The management had sent fresh requisition to the Director Higher Education U.P., Allahabad alongwith communication dated 5.8.2003, it is the duty of the Director, Higher Education, U.P. Allahabad to forward the requisition to the U.P. Higher Education Services Commission, Allahabad for fresh advertisement and selection of regular candidate for appointment on the post of principal in the petitioner institution. Post cannot be kept vacant on account of laxity on the part of the selected candidates, Management of the institution and provisions of U.P. Higher Education Services Selection Board Act 1980 for requisition of post selection, appointment and joining of selected candidates is to be strictly followed by the concerned authorities. 22. Taking into consideration of the said circumstances and in the interest of justice we hereby direct that for the vacant post of the principal in the institution,namely,G.D. Binani Post Graduate College, Mirazapur the requisition be forwarded as early as possible to the Commission and Commission shall advertise for filing up the said post at the earliest. 23. With these observations, the writ petition is allowed. ——————