Dr. Gorakhnath vs U.P. Higher Education Services and Others

An advertisement No. 29 was published by U.P. Higher Education Service Commission (the Commission) on receipt of requisition from the colleges. Km. Vibha (Respondent 6) was one of the Applicants in the said advertisement.

The interview was also held and thereafter the result of Advertisement No. 29 was published on 30.04.2004. Respondent 6 was placed at Sl. No. 17 in the waiting list.

One Tushar Kanti Singh (Sri Singh) was a lecturer in Hindi in the College. He expired on 14.05.2001 and a vacancy also arose on his death.

The College sent requisition to the Director of Higher Education, Uttar Pradesh for the post that had fallen vacant on the death of Sri Singh.

This post was subsequently advertised by the Commission in Advertisement No. 32 on 26.04.2002.

Respondent 6, a candidate of the waiting list of Advertisement No. 29, was given appointment in the College on the post on 16.09.2003 that had fallen vacant on the death of Sri Singh.

Dr. Gorakh Nath (the Petitioner) was one of the Applicant in Advertisement No. 32 and had given his choice for the College. He was selected and was given another College. However, he filed representations and thereafter Writ Petition No. 50155 of 2005 challenging the appointment of Respondent 6 basically on the ground that-

� Respondent 6 was selected in pursuance of the Advertisement No. 29;

� She has been appointed on a post that had fallen vacant on the death of Sri Singh;

� The vacancy on the death of Sri Singh was not advertised in Advertisement No. 29; and

� Respondent 6 could not be appointed on the said post.

The writ petition was allowed on 16.01.2006.

Respondent 6 filed Civil Appeal No. 5564 of 2008 before the Supreme Court. This appeal was taken up on 03.06.2010 and at that time the counsel for Respondent 6 sought permission to withdraw the appeal with liberty to file an application for review in the judgment. The appeal was accordingly disposed of as withdrawn. After the aforesaid Respondent 6 has filed this application for review.

We have heard counsel for the parties.

The delay in filing the Review Application is condoned.

The counsel for Respondent 6 submits that Section 13(4) of the U.P. Higher Education Service Commission Act, 1980 (the Act) contemplates the filling of the vacancy on the basis of the waiting list if that vacancy has occasioned apart from other things due to death and that such a vacancy was notified to the Commission.

The counsel further submits that in this case the vacancy had occasioned due to death of Sri Singh and the requisition of this vacancy was sent by the College to the Director on 20.08.2001. In view of the mandatory provisions the Respondent 6 was rightly appointed. The vacancy had taken place during validity of the list sent by the Commission u/s 13(2) of the Act.

There is no force in the submission of the counsel for Respondent 6. Further, this is a review application and apart from this there is a decision by the Supreme Court in the case of Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors. reported in AIR 1988 SC 1021 which has taken the view that in case the vacancy is not advertised then the post cannot be filled from the waiting list.

In view of this, we see no justification to review the order. The review application is dismissed.