RAGINI SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(1.) R. Dayal, J. 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 proce dure stipulated in sections 12 and 13 (1) of the Uttar Pradesh Higher Education Ser vice Commission Act, 1980 (hereinafter referred to as the Act) and whose name has been intimated to the management of a col lege 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 Sec tion 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 Service Commission vide advertisement No. 20/94. Amongst others Km. Ragini Srivastava, petitioner in writ petition No. 30332 of 1996, Smt. Sumita Tkndon, petitioner in writ petition No. 32304 or 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 Tkndon 8th and Sri Ashutosh Dwivedi 9th, in order of merit of the selected candidates. Both the petitioners indicated C. M. P. Degree Col lege as the first choice under the Second Proviso to 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 ap pointment 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 recom mended. Subsequently, another vacancy arose in C. M. P. Degree College, Allahabad on Dr. Asharfi Lal Srivastava attaining the age of superannuation on 4-1-1996. He was to vacate office finally on 30-6-1996 on ex piry 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 1 and 3 wanted to nominate Smt. Sumita Tandon on the post of lecturer in C. M. P. Degree College on ac count 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 lec turer 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. De gree College, Allahabad. Smt. Sumita Tan don has, in the alxjrnative, 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 lec turer in Ancient History in S. B. P. G. Degree College, Badlapur, Jaunpur. Sri Dwivedi has stayed in his counter-affidavit that after receiving his appointment letter at Bad lapur College, he came to know that there was leave vacancy in Allahabad Degree Col lege, Allahabad as one Sri Shiv Prakash Yadav, lecturer, had gone on leave with ef fect from 13-11-1995 to 12-11-1996 end so he made a request by his letter dated 26-3-1996 that instead of being posted in substan tive vacancy existing at Badlapur he might be permitted to opt for appointment in the leave vacancy existing in the Allahabad De gree 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 the leave vacancy be came 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 1 and 3 also it is averred that the vacancy in the Allahabad Degree Col lege 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. Fur ther, it is stated on behalf of respondents 1 and 3 that it is not feasible to allow a change in the order of preference 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. Be sides, 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. Sumita Tandon deposing that there are instances where can didates were allowed to change their preference subsequent to the issue of ap pointment letters in the first instance.

(3.) WE, therefore, hold that an appoint ment 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 con tingency which could not be anticipated ear lier and the vacancy caused by superannua tion 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 Sec tion 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 vacan cy.