JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri G.K. Singh, learned counsel for petitioner, Ms. Pragya Pandey, Advocate holding brief of Smt. Archana Singh, learned counsel for respondent No. 2 and learned Standing Counsel for respondent No. 1. 2. Petitioner has challenged appointment of respondent No. 5 Ram Kumar Singh on the post of Lecturer (Agriculture Economics) in B.R.D. P.G. College, Deoria. 3. Brief facts giving rise to present petition are as under : 4. B.R.D., P.G. Collage, Deoria (hereinafter referred to as ‘College’) is a Post Graduate College affiliated to Deen Dayal Upadhyay University, Gorakhpur (hereinafter referred to as ‘University’). College receives grant-in-aid from State Government and is governed by provisions of U.P. State Universities Act, 1973 (hereinafter referred to as ‘Act, 1973’) and the first statute of University framed under Act, 1973. For the purpose of recruitment of teachers in College it is also governed by U.P. Higher Education Services Commission Act, 1980 (hereinafter referred to as ‘Act, 1980’). Further College is being managed by an Authorised Controller (respondent No. 4). 5. The post of Lecturer (Agriculture Botany) fell vacant on temporary basis since Dr. Amar Nath Singh, an incumbent, appointed on the said post in College, proceeded on long leave from 1.7.2002 to 9.5.2003. Since selection by U.P. Higher Education Services Commission (hereinafter referred to as ‘Commission’) was to take time, State Government issued an order dated 7th April 1998 permitting engagement of teachers on a fixed amount of honorarium in Non-Government Colleges. Under aforesaid Government Order, selection is to be made by Committee of Management on the criteria of merit after advertisement of vacancy and such a selection would be for concerned academic session, which may continue thereafter in subsequent session but would not entitle incumbent to claim regular appointment made on the post. 6. In view of Government Order dated 7.4.1998, College advertised the vacancy of Agriculture Botany. Petitioner was ultimately selected and appointed with approval of Director, Higher Education vide appointment letter dated 1.10.2002. A copy of appointment letter is Annexure-5 to writ petition. The aforesaid appointment initially was for a period upto 30th June 2003 or till regularly selected candidate is available. Pursuant to aforesaid letter of appointment, petitioner submitted his joining on 1.10.2002 itself. Petitioner was ultimately selected and appointed with approval of Director, Higher Education vide appointment letter dated 1.10.2002. A copy of appointment letter is Annexure-5 to writ petition. The aforesaid appointment initially was for a period upto 30th June 2003 or till regularly selected candidate is available. Pursuant to aforesaid letter of appointment, petitioner submitted his joining on 1.10.2002 itself. After end of session i.e. 30th June 2003, College treated service of petitioner having seized, whereupon he filed Writ Petition No. 24606 of 20003 for a direction to permit petitioner to continue on the post till regularly selected candidate by Commission joins the post. On 4th June 2003, this Court passed following interim order : “Learned standing counsel has accepted notice on behalf of the respondent Nos. 1 and 2. Issue notice to respondent No. 3. Each one of the respondents is granted six weeks time for filing counter-affidavit. Two weeks thereafter is granted for filing rejoinder-affidavit. List this case on 11.8.2003. Till the next date of listing petitioners shall be permitted to discharge their duty as he is doing in the past till regularly selected candidate is recommended by the Commission.” 7. The Government Order dated 7th April 1998 came up for consideration before a Division Bench in Malvika Shekhar v. Director of Higher Education in Writ Petition No. 44332 of 2003 and it was set aside vide judgment dated 29.9.2003 holding that appointment under Government Order dated 7th April 1998 is illegal. Against aforesaid judgment dated 29.9.2003 in Malvika Shekhar (Supra) an appeal was preferred i.e. Special Leave to Appeal (Civil)......../2003 (CC 11221/2003) and Supreme Court vide order dated 9.12.2003 stayed judgment of this Court. Petitioner is thus, continuously working since 1.10.2002. 8. Commission advertised post of Lecturer (Agriculture Botany) for College. The said advertisement was issued on 26.4.2002, published in Daily Hindi Newspaper ‘Amar Ujala’. The newspaper contained three advertisements Nos. 30, 31 and 32. Advertisement No. 30 was for filling up backlog/carry forward vacancy for reserved category pursuant to advertisement No. 24; Advertisement No. 31 for filling up of backlog/carry forward vacancy advertised in advertisement No. 26 and Advertisement No. 32 was for both general and reserved category. Respondent-5 applied pursuant to advertisement No. 31. He was selected and placed in select list prepared by Commission and sent to Director, Higher Education for his placement. Respondent-5 applied pursuant to advertisement No. 31. He was selected and placed in select list prepared by Commission and sent to Director, Higher Education for his placement. Director, Higher Education, vide recommendation dated 23.6.2005 forwarded name of respondent-5 for appointment in College. It was mentioned in the said letter that the placement of respondent-5 was made on a newly created post. When respondent-5 approached College and requested for issuance of appointment letter to him, College wrote a letter dated 19th/20th July 2005 to Director, Higher Education stating that for newly created post of Lecturer (Agriculture Botany) vide order dated 19.5.1998, Director, Higher Education sent recommendation/placement order dated 29.10.1999 in favour of one Rajendra Singh Lohia, a candidate selected by Commission, and pursuant thereto, he was appointed and is presently working and no such post is vacant in that College. It is also stated that respondent-5 was working as Lecturer on honorarium basis in ‘Ranjeet Singh Memorial P.C. College Dhampur, Bijnor’ against a substantive vacancy when selected and recommended for appointment in College. 9. When College having clarified position with respect to the alleged newly created post of Lecturer (Agriculture Botany) and showed inability to issue appointment letter to respondent-5, it compelled him to approach this Court in Writ Petition No. 743 of 2006 impleading State of U.P.; Commission; Director, Higher Education; Management of College and Dr. Rajendra Singh Lohia, seeking following reliefs : “(a) a writ, order or direction of suitable nature commanding the respondents to give appointment to the petitioner as Lecturer (Agriculture Botany) for which the petitioner is selected by the Commission. (b) a writ, order or direction in suitable nature commanding the respondents to recommend the name of the petitioner for the post of Lecturer (Agriculture Botany) to Ranjeet Singh Memorial, P.G. College Dhampur, Bijnore where a substantive post of Lecturer (Agriculture Botany) on honorarium basis or any other recognized institution where a substantive post of Lecturer (Agriculture Botany) is vacant. (c) a writ, order or direction in suitable nature commanding the respondent authorities to decide the representations of the petitioner dated 31.5.2005, 14.11.2005 and 23.11.2005 (Annexure 7, 10-A and B to this writ petition).” 10. The writ petition was disposed of vide judgment dated 12.3.2007 permitting respondent-5 to make a representation and Director, Higher Education was required to decide the same by a speaking order. 11. The writ petition was disposed of vide judgment dated 12.3.2007 permitting respondent-5 to make a representation and Director, Higher Education was required to decide the same by a speaking order. 11. State Government instead of getting compliance of judgment dated 12.3.2007, issued an order dated 27.8.2007 requiring Director, Higher Education to place respondent No. 5 in College and pursuant thereto vide letter dated 6.9.2007, Director, Higher Education informed College that for easy adjustment of respondent-5, he should be appointed against vacancy advertised vide advertisement No. 41 i.e. the post whereupon petitioner is working. In such circumstances, petitioner made a detailed representation dated 17.9.2007 informing that respondent No. 5, having not been selected against vacancy advertised vide advertisement No. 41, hence cannot be adjusted thereagainst so as to dislodge petitioner. It was also stated that Dr. Amar Nath Singh, having continued on leave, ultimately resigned on 17.2.2007, rendering the vacancy permanent. 12. It is also stated that petitioner has applied to the post, he is holding as Lecturer on honorarium basis, pursuant to advertisement No. 41 and in case, respondent No. 5 is allowed to be appointed against the said post, the entire selection pursuant to advertisement No. 41 in respect of said post, will stand frustrated and this is not permissible to Director, Higher Education in any circumstances. 13. Further reliance is placed on Section 31-E inserted vide U.P. Act No. 42, 2006 of Act, 1980 providing for regularisation of teachers working on honorarium basis and have completed three years and it is contended that petitioner is also entitled for regularization in view of aforesaid provision, pursuant whereto, Director, Higher Education has already asked from concerned colleges names of such teachers, who fulfill requirement under Section 31-E for regularisation, College vide letter dated 6.2.2007 has sent information mentioning petitioner’s name at Sl. No. 2. 14. The writ petition has been contested by respondents. Counter-affidavit on behalf of respondents-1 and 3 has been filed sworn by Dr. P.K. Sharma, Assistant Director, in which it is not disputed that respondent-5 Ram Kumar Singh was selected pursuant to advertisement No. 31. He was allotted vacancy against newly created post but could not join since another selected candidate had already joined the said post/vacancy. Counter-affidavit on behalf of respondents-1 and 3 has been filed sworn by Dr. P.K. Sharma, Assistant Director, in which it is not disputed that respondent-5 Ram Kumar Singh was selected pursuant to advertisement No. 31. He was allotted vacancy against newly created post but could not join since another selected candidate had already joined the said post/vacancy. Thereafter pursuant to order passed by this Court in Writ Petition No. 743 of 2006, an order was passed to accommodate respondent-5 under Section 31(5) to any other college, State Government agreed with proposal of Director, Higher Education and thereafter placement of respondent-5 has been made in the College against vacancy in which petitioner is working. It is said that the adjustment, which has been made by respondent-3 is permissible under Section 13(5) of Act, 1980 to do justice and equity to selected candidate. 15. On behalf of Committee of Management of College, a separate counter-affidavit has been filed, sworn by Sri K.N. Singh, Principal and there also stand taken by respondent-5 has been reiterated and followed. It is also stated that pursuant to order dated 12.9.2007 respondent-5 has been given appointment letter and he has joined College and is working. 16. Petitioner has filed rejoinder-affidavits disputing stand taken by respondents and reiterated what it has stated in writ petition and has also placed reliance on the judgment in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, (1998) 3 SCC 45 . 17. The order adjusting respondent-5 is sought to be justified by respondents-1 and 3 with reference to Section 13(5) of Act, 1980, which reads as under : “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 a list recommending such number of names of candidates found most suitable in each subject as may be, so far practicable, twenty-five per cent more than the number of vacancies in that subject. Such names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination is held. (2) The list sent by the Commission shall be valid till the receipt of a new list from the commission. Such names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination 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 the order of preference if any indicated by the candidates under the second proviso to Sub-section (4) of Section 12, intimate to the management to 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 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 Commission under Sub-section (3) of Section 12, the Director may intimate to the management the name of a candidate from such its for appointment in such vacancy. (5) Notwithstanding anything in the preceding provisions, where to abolition of any post of teacher in any college, services of the person 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 Section 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.” (emphasis added) 18. Sub-sections 1, 2 and 5 talk of selection made pursuant to concerned advertisement, merit list prepared by Commission and forwarded to Director, Higher Education and consequent recommendation made by Director to Management of College for appointing selected candidates on the vacancy intimated to Commission under Sub-section 2 of Section 12. 19. In this regard, case set up by respondents is clear that in advertisement No. 31, a vacancy of Lecturer (Agriculture Botany) created vide Government Order 7th April 1998 was advertised and there-against respondent-5 was recommended for appointment by Management of College. 19. In this regard, case set up by respondents is clear that in advertisement No. 31, a vacancy of Lecturer (Agriculture Botany) created vide Government Order 7th April 1998 was advertised and there-against respondent-5 was recommended for appointment by Management of College. It appears that Director, Higher Education failed to consider or keep in mind that in the meantime, it had already filled in the said vacancy by recommending another candidate Rajendra Singh Lohia and he was already appointed, hence there is no such vacancy on the date of recommendation made by Commission or the date on which the placement and recommendation made by Director, Higher Education. In fact even this arrangement by Director was illegal but unfortunately appointment of Rajendra Singh Lohia is not subjected to this petition, hence we cannot help respondent-5. 20. There are two provisions, which permit Director to make appointment of a candidate in respect of a vacancy, which has not been advertised by recommending name of a candidate selected from another advertisement. They are Sub-sections 4 and 5 of Section 13. 21. Sub-section 4 comes into picture to a vacancy, which has occurred due to death, resignation or otherwise during validity period of a select list sent by Commission under Sub-section 2 of Section 13 and in respect of such vacancy, Director may intimate to Management, the name of a candidate from such list for appointment but it is subject to condition that firstly, a vacancy must have occurred during validity period of list and further that vacancy has not been notified to Commission under Section 12(3) of Act, 1980. 22. Sub-section 5 talks of a situation wherein due to abolition of post of a teacher in College, a person substantively appointed is terminated. State Government can protect such a person by issuing a suitable order for his appointment in a suitable vacancy whether notified under Sub-section 3 of Section 12 or not, in any other College, whereupon Director shall intimate Management accordingly. 23. We fail to understand as to how Sub-section 5 will be applicable in the case in hand, inasmuch as, respondent No. 5 is not a person, who is substantively appointed and would stand terminated due to abolition of any post of teacher in College and to provide him suitable appointment an order can be passed under Section 13(5) of Act, 1980. Despite giving widest construction to the language of Section 13 (5), we do not find that respondent-5 can be fitted in the exigency contemplated by Section 13(5) of Act, 1980 and we have no hesitation in holding that aforesaid provision has no application to the case in hand. 24. Now we come to the question, “whether Sub-section 4 can be applied in the case in hand”. 25. We find that Commission forwarded select list vide its letter dated 2.5.2005. The first placement was made by Director vide order dated 23.6.2005. Short-term vacancy on the post of Lecturer (Agriculture Botany) occupied by petitioner occurred on 1.10.2002 when permanent incumbent Dr. Amar Nath Singh proceeded on leave on 1.10.2002 and it got converted into a substantive vacancy on 17.2.2007 when Dr. Amar Nath Singh resigned. The aforesaid substantive vacancy has been advertised vide advertisement No. 41 in daily newspaper Dainik Jagran dated 10.2.2007. Thus, when Court passed order on 12.3.2007 in Writ Petition No. 743 of 2006 filed by respondent-5 directing authorities to decide his representation as also on 27.8.2007 and State Government issued order directing Director, Higher Education to adjust respondent-5 in the College and on 20.9.2007 when Director, Higher Education issued impugned order, the vacancy in question was already notified to Commission and advertised for recruitment. Therefore, one of the conditions under Sub-section 4 that such vacancy has not been notified to Commission under Sub-section 3 of Section 12 is not satisfied and that being so, Director did not get any authority to intimate management to appoint respondent-5 from select list sent by Commission on 2.5.2005. 26. Thus, Section 13 is not at all applicable in the case in hand. No other provision has been relied by the respondents in order to justify impugned order of appointment of respondent-5. 27. In view of above discussion, we are clearly of the view that appointment of respondent-5 on the post in question by referring to Section 13(4) and (5) of Act, 1980 is beyond the scope of said provisions and is illegal. Respondent-5 having not been selected against the vacancy in question and there is no provision under the Act, which may justify his appointment against the vacancy in question despite having not been selected against the same, the impugned order issued by Director, Higher Education for appointment of respondent-5 on the post in question cannot be sustained. 28. Respondent-5 having not been selected against the vacancy in question and there is no provision under the Act, which may justify his appointment against the vacancy in question despite having not been selected against the same, the impugned order issued by Director, Higher Education for appointment of respondent-5 on the post in question cannot be sustained. 28. In the result, the writ petition is allowed. Impugned orders dated 27.8.2007 (Annexure 15 to the writ petition) and 20.9.2007 (Annexure 8 to the writ petition) are hereby set aside. Petitioner shall be entitled to cost, which we quantify to Rs. 25,000/- against respondents - 1 and 3. ——————