RAGINI SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) POINT for decision in both these writ petitions is whether it is open to a candidate, who having been selected by U. P. Higher Education Services Commission in accordance with the procedure stipulated in Sections 12 and 13 (1) of the Uttar Pradesh Higher Education Service Commission Act, 1980 (hereinafter referred to as the Act) and whose name had been intimated to the Management of a college under Section 13 (3) by the Director of Education having due regard to the order of preference, if any, intimated by him under the second proviso to sub-section (4) of Section 12 and who has been consequently appointed by the management under Section 14 (1) of the Act, not to Join the college where the appointment has been made but claim that he or she should be appointed to any other college.

(2.) VACANCIES for the post of Lecturer in Ancient History were advertised by the U. P. Higher Education Services Commission vide advertisement No. 20/94. Amongst others Km. Ragini Srivastava, petitioner in Writ Petition No. 30332 of 1996, Smt. Sumita Tandon, petitioner in Writ Petition No. 32304 of 1996 and one Sri Ashutosh Dwivedi impleaded as respondent No. 7 in Writ Petition No. 32304 of 1996 were selected by the Commission. Km. Ragini Srivastava was third, Smt. Sumita Tandon 8th and Sri Ashutosh Dwivedi 9th, in order of merit of the selected candidates. Both the petitioners indicated C. M. P. Degree College as the the first choice under the Second Proviso the sub-section (4) of Section 12. However, the name of Km. Vibha Mishra, who was 2nd in the order of merit, was intimated by the Director for C. M. P. Degree College, Allahabad. The name of Km. Ragini Srivastava was Intimated by the Director for being appointed to Harish Chandra Post Graduate College, Varanasi which was her second preference. The name of the other petitioner, Smt. Sumita Tandon, was intimated to the management of M. D. Degree College, Maunath Bhanjan, Mau as she was not found entitled to be recommended for any specific preference indicated by her having regard to order of Merit. Km. Ragini Srivastava was issued appointment letter as per the intimation given by the Director of Education, but she did not join. The other petitioner, Smt. Sumita Tandon intimated unwillingness to join the college for which her name was recommended. Subsequently, another vacancy arose in C. M. P. Degree College, Allahabad on Dr. Ashartfi Lal Srivastava attaining the age of superannuation on 4.1.1996. He was to vacate office finally on 30.6.1996 on expiry of his term of re-employment. By the letter dated 18.2.1996, the Principal of C. M. P. Degree College made a request to the Director of Education to recommend the name of any selected candidate to fill the vacancy. This letter was followed by a reminder dated 4.4.1996. But the Director of Education did not recommend the name of any candidate to fill the vacancy. Km. Ragini Srivastava has alleged in her petition that respondents No. 1 and 3 wanted to nominate Smt. Sumita Tandon on the post of Lecturer in C. M. P. Degree College on account of political pressure in preference to her even though Smt. Sumita Tandon is below her In the order of merit. Km. Ragini Srivastava has detailed her personal problems to join at Varanasi. Smt. Sumita Tandon has also alleged that due to personal difficulties, it is not possible for her to join the college at Maunath Bhanjan. Sri Ashutosh Dwivedi was appointed as Lecturer in S. B. P. G. Degree College, Badlapur, district Jaunpur. He also did not join the college there. Later, he was appointed in Allahabad Degree College, Allahabad. Case of both the petitioners is that since both of them were higher In order of merit than Sri Ashutosh Dwivedi, Sri Dwivedi should not have been appointed in preference to them. They have claimed mandamus for being appointed on the post of Lecturer in Ancient History in C. M. P. Degree College, Allahabad. Smt. Sumita Tandon has, in the alternative, also claimed mandamus to be appointed in Allahabad Degree College, Allahabad and a further mandamus to the Director of Education asking Sri Ashutosh Dwivedi to join as Lecturer in Ancient History in S. B. P. G. Degree College, Badlapur, Jaunpur. Sri Dwivedi has stated in his counter-affidavit that after receiving his appointment letter at Badlapur College, he came to know that there was leave vacancy in Allahabad Degree College, Allahabad as one Sri Shiv Prakash Yadav. lecturer, had gone on leave with effect from 13.11.1995 to 12.11.1996 and so he made a request by his letter dated 26.3.1996 that instead of being posted in substantive vacancy existing at Badlapur, he might be permitted to opt for appointment in the leave vacancy existing in the Allahabad Degree College, Allahabad and that having opted for appointment in the leave vacancy, he took the risk as the post at Badlapur was filled up by some other person and there was every likelihood of his appointment coming to an end on the expiry of the leave vacancy, though subsequently that leave vacancy became substantive vacancy, as Sri Shiv Prakash Yadav resigned with effect from 1.10.1996. In the counter-affidavit filed by Dr. Suresh Chandra Tiwari on behalf of respondents No. 1 and 3 also, it is averred that the vacancy in the Allahabad Degree College was not a clear and substantive vacancy but a leave vacancy and that the name of Sri Ashutosh Dwivedi was intimated to the Management of Saltanat Bahadur Degree College, Badlapur, Jaunpur and in giving leave vacancy appointment to Sri Dwivedi, there was nothing unjust and unfair. Further, it is stated on behalf of respondents No. 1 and 3 that it is not feasible to allow a change in the order of preferences of colleges at any time, as to allow such changes would create endless and intricate problems. The counter- affidavit further states that after Km. Ragini Srivastava did not Join her duties in Harish Chandra Post Graduate Degree College, Varanasi, the college authority requested the Director to quash the recommendation in her favour and to send some other selected candidate, as teaching work was suffering and the college was in dire need of a selected teacher. Besides, no vacancy existed in C. M. P. Degree College when names of the petitioners were intimated to the managements, as stated earlier ; the vacancy in that college (C. M. P. Degree College) fell on 1.7.1996 and has been notified to the Commission vide letter dated 8.8.1996 under Section 12 of the Act and it is, therefore, to be filled in only in accordance with the provisions of the Act. A supplementary affidavit In reply has been filed by the petitioner, Smt. Sumlta Tandon deposing that there are Instances where candidates were allowed to change their preference subsequent to the issue of appointment letters in the first instance.

(3.) WE, therefore, hold that an appointment of a teacher in any college can be made only in accordance with the manner provided in Sections 12 and 13 of the Act except where a vacancy occurs due to death, resignation or on account of some such contingency which could not be anticipated earlier, and the vacancy caused by superannuation is not such vacancy and is not covered by the expression "or otherwise" occurring in sub-section (4) of Section 13. Filling up of the vacancy to which sub-section (4) of Section 13 is not applicable without following the procedure prescribed in Sections 12 and 13 of the Act would be in contravention of the Act and would, accordingly, be void in view of sub-section (1) of Section 12. This construction, apart from being literal, would eschew manipulation and ensure equality of opportunity to all candidates who would be eligible to apply for a vacancy.