KM NISHA SRIVASTAVA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Km. Nisha Srivastava, the petitioner before us, has filed this writ petition under Article 226, Constitution of India mainly with the prayer:

(2.) Admitted facts of the case are summarized hereunder. SI.No. Date Particulars 1 20-5-89 U.P. Higher Education ServiceCommission issued Advertisement No of 1989 inviting applications tofill up eight posts ( 3 permanent, 4 temporary and one time bound) ofLecturer Music (Vocal): l.DAVCollege.Dehradun (Permanent) 2.Mahila Sewa Sadan Degree College, Allahabad (Permanent) 3.Juhari Devi Girls Degree College , Kanpur (Permanent) 4.Rameshwar Dar Agarwal Kanya Mahavidyalaya, Hathras (Temp.) 5.Mahatma Gandhi Balika Mahavidyalaya, Firozabad (Temp.) 6.Raja Mohan Girls Degree College, Agra (Temp.) 7.B.D. Jain Girls Degree College, Agra (Temp.) 8.Avadh Girls Degree College, Lucknow(Part Time) (See Anncxure-1 to SCA of Resp. -sworn on 10-10-99) 2 27-8-91 Substantive vacancy on the postof Lect. Music (Vocal) in CMP Collegedue to untimely demise of erstwhileincumbent Smt. Madhuri Saxena 3 3-10-91 Letter of Principal of CMPCollege informing vacancy over postdue to death of Madhuri Saxena to Director, Education (H.E.) U.P. at Allahabad. (See Annexure-2 to SCA-II-swornon 12-9-99 on behalf of Resp. No. 5). 4 24-3-92 Petitioner engaged purely on part timebasis on fixed honorarium terminable without prior notice./Annexure-2 to Writ Petition.(See para 10 & 13 of C.A. of COM/Resp. No. 2), 20-7-92 Petitioner was re-engaged withoutreference to tenure but on old term-I i.e. part-time on fixed wages(on contract basis). (Annexure-3 to Writ Petition.) 6 25-7-92 Petitioner joined CMP Degree College-aspart-time teacher on fixed wages.(Annexure-3 to W.P.) 7 21-12-92 Order terminating Services of petitionerChallenged by filing CM. W.P. No. 1131 of 1993. 8 7-1-93 Interim order granted.-petitioner allowedto continue as part-time teacher. 9 20-2-93 Advertisement No. 19 in Amar Ujala (Agra) 5 posts of Lect. Music (Vocal). (See Annexure S.A.-l to Supplementary Counteraffidavit-sworn on 2-9-98) 10 30-6-93 Petitioner applied against Advertisement No. 19receipt of application issued by UPHESC(Annexure-17 to Writ Petition) 11 23-3-94 Selection against Advertisement No. 14of 1989 declared. As per record producedby U.P.Higher Education Service Commission, Respondent No. 5 selected against thepost of DAV College, Dehradun. The saidvacancy was not available at the timeof selection of Respondent No. 5 asthe person working at Dehradun on the saidpost has been regularized. 12 21-7-94 Respondent No. 5 given placement to K.D. Degree College, Mirzapur(Annexure-7to Writ Petition). 13 August 94 Appointment letter given to Smt. PadmajaSingh to join K.D. Degree College, Mirzapur. (Annexure-8 to Writ Petition.) 14 2-9-94 Letter requesting Director of Education(H.E.) to fill up vacancy occurred dueto demise of Smt. Madhuri Saxena (Annexure-3 to C.A. of Respondent Nos. 1&3). 15 26-11-94 Intimation of vacancy of post of Lecturer, Music (Vocal) in CMP Degree College, sentby the Principal, CMP Degree College, Allahabad to Director of Education (H.E.) (in reference to his letter dt. 12-10-94). (Annexure-1 to Writ Petition). 16 26-11-94 Dr. Padmaja Singh failed to join K. D. Degree College, Mirzapur. (Annexure-9to Writ Petition). 17 2-2-95 Placement of Dr. Padmaja Singh inK.D.Degree College, Mirzapur cancelled 18 2-2-95 19 9-2-95 20 5-5-95 5-12-95 20-7-96 21 15-7-98 22 12-10-98 Act. by Dir. of Edu.(H.E.)(Annexure-10 to Writ Petition.) Director of Education (H.E.) issued fresh order of placement against unadvertised vacancy of Lecturer, Music (Vocal) in CMP Degree College, Allahabad-exercising power Under Section 13(4) of UP Hr. Edu Serv. Commn. Act. (Annexure-11 to Writ Petition). Appointment letter issued by Committee of Management, CMP Degree College, Allahabad infavour of Dr. Padmaja Singh. Representations to Dire. Of Edu. (H.E.) objecting illegal appointment of Resp. No. 5 (Annexures-13,14 &15 to Writ Petition.) Writ Petition No. 1131/98, Kr. Nisha Srivastava v. Committee of Management dismissed. Review petition against the jt. and order dt. 15-7-98 along withApplication Under Section 5, Limitation

(3.) Comparative academic qualifications of Padmaja Singh (Respondent No. 5) and Nisha Srivastava (petitioner) are as follows: Dr. Padmaia Singh Dr. Nisha Srivastava (Petitioner) (Respondent No. 5) Particulars Year HighSchool 1970 Inter 1972 Prabhakar 1975 B.A. 1974 M.A. 1984 Ph.D. 1992 NET - Marks Divn. %tage Year328/500 1st 65.6%1981 314/500 1st 62.8%1984 1st - 451/800 2nd 56% 576/800 1st 72% Certificate - issued on 31-3-93Jan.93) -1998 1985 1986 1988 1999 Marks Divn %tage260/500 2nd 52% ' 273/500 2nd 54.5% 184/300 1st 62% 468/900 2nd 52.8% 614/1000 1st 61.2% Certificate (Joining issued on 6-6-00 Cleared -