YOGESH KUMAR GUPTA Vs. STATE OF U P

JUDGEMENT

(1.) PALOK Basu, J. A serious challenge has been extended to the impugned order dated 20-7-1993 passed by the Director of Higher Education, Allahabad making placement of opposite party No. 5 Dr. Kamlesh Kumar Sharma as the Principal, Maharaj Singh College, Saharanpur, in alleged exercise of powers under Section 13 (4) of the U. P. Higher Education Service Commission Act, 1980 (for short, the Act ). The ultimate question arising for consideration would be as to whether the Director is empowered under the Act to pick up a name from the list of candidates sent by the Commission even for fulfilling a post of teacher/principal of a college which vacancy was non-existent when the said list was prepared and which vacancy was never advertised nor accord ed due publicity in accordance with the provisions of the Act.

(2.) THE relevant facts lie in a narrow compass. Maharaj Singh College (for short, the College) is a Post- Graduate Degree College at Saharanpur and is governed by the provisions of the U. P. State Universities Act (for short, University Act) and First Statutes of Meerut University framed under the University Act. One Dr. R. P. Sharma, who was the regular principal of the college retired on 9-7-1992 but worked upto 30-6-1993 and the vacancy accru ed actually on 1-7-1993. In pursuance of the First Statute No. 13-20, the Management of the college decided at its meeting on 22-6-1993 to appoint the petitioner Dr. Y. K. Gupta as officiating principal. A copy of the letter is Annexure 1 to the writ petition, the genuineness of which is admitted to the respondents. It has been stated in paragraph No. 8 that the petitioner took charge on 30-6-1993 from the out-going principal Sri R. P. Sharma. This averment is admitted.

(3.) BEFORE taking up the discussion and consideration of the respective arguments begin, two facts should be noted here. The Act had quite a differently looking Sections 12 to 14 which were completely substituted by U. P. Higher Education Services Commission (Amendment) Ordinance No. 43 of 1991. The aforesaid Ordinance became U. P. Act No, 2 of 1992 and is opera tive from 22-11'1991. For all practical purposes, therefore, the present case or matters where vacancies have arisen after Ordinance No. 43 of 1991 came into being, shall be governed by the provisions of the Act as amended by U. P. Act No. 2 of 1992. Both parties have extensively relied upon the language used in the amended Sections 12 to 14 of the Act. Repeated reference to the provisions contained in those three sections has been made and, therefore, for ready reference the aforesaid three sections, which will govern the present pro ceedings, are quoted below : "12. Procedure for appointment of teachers,- (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. (2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such man ner, as may be prescribed. Explanation.-The expression "academic year" means the period of 12 months commencing on July 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject-wise consolidat ed list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of lecherers of a College shall be such, as may be deter mined by regulation : Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3): Provided further that the candidates shall be required to indicate their order of preference for the various colleges vacancies wherein have been advertised. 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 list recommending such number of names of candidates found most suitable in each subject as may be, so far as practicable, twenty-five per cent more than the number of vacancies in that subject such names shall be arranged in order of merit shows in the interviews, or in the examination and interviews if an examina tion 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 to order of preference if any, indicated by the candidates under the second proviso to sub-section (4) of Section 12, intimate to the management the 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 duo 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 list for ap pointment in such vacancy. (5) Notwithstanding anything in the preceding provisions, where to abolition of any post of teacher in any college, services of the par son 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 Sec tion 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. 14. Duty of Management.- (I) The management shall, within a period of one month from the date of receipt of intimation under sub-section (3) or sub-section (4) or sub-section (5) of Section 13, issue appointment letter to the person whose name has been inti mated. (2) Where the person referred to in sub-section (1) fails to join the post within the time allowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such parson is otherwise not available for appointment, the Director, shall on the request of the management intimate fresh name from the list sent by the commission under sub-section (1) of Section 13 in the manner prescribed. " Having thus noted the relevant provisions all that now has to be decided is as to whether the petitioner's contention that the impugned order would not have been passed and no appointment from out of a list which was prepared much before the present vacancy arose, is correct or respondent's contention that the said list's life continues till the receipt of a new list from the Commission should be interpreted to mean that the Director is empowered to direct any name from that list to be appointed as teacher/principal, is correct.