Dr. Mukesh Kumar Gaur vs State of U.P. and Others

We have heard Shri Shailendra, learned Counsel for the Petitioner. Learned Standing Counsel appears for the State Respondents.

The Petitioner was selected and placed at serial No. 1 in the waiting list of general category in pursuance to advertisement No. 41 issued by the U.P. Higher Education Service Commission for appointment as Lecturer in ''Agriculture Chemistry''. By this writ petition, he has challenged an order passed by Dr. Ramanand Prasad, Director of Higher Education, U.P. Allahabad dated 3.1.2011 by which his placement order in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur dated 23.11.2010, issued by Shri Mian Jan, the out going Director of Education (Higher Education) U.P., retired on 30.11.2010, has been cancelled, on the ground that it was against the rules and that the letter number, by which the placement order was issued by the office of Director of Higher Education, U.P. Allahabad, is fraudulent.

Learned Standing Counsel appearing for the State-Respondents was required to seek instructions as to why Petitioner''s placement order has been cancelled. He has placed on record the instructions signed by Dr. Ramanand Prasad, Director, Higher Education, U.P. Allahabad. The instructions made part of the record, are quoted as below:

Manish Kumar Gaur v. State of UP and Ors. Writ Petition No. 3733/2011

INSTRUCTIONS

The abovenoted writ petition was listed for hearing before the Hon''ble Court on 21.1.2011 and after hearing the Hon''ble Court has been pleased to direct the Standing Counsel to seek instruction and place the same before the Hon''ble Court on the next date of hearing i.e. 1.2.2011. The instructions as required by the Hon''ble Court is being submitted as below:

That through the instant writ petition the Petitioner has prayed for order or direction in the nature of certiorari quashing the order dated 3.1.2011 whereby the Director, Higher Education has cancelled the placement order of the Petitioner in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur for the reasons that the said placement has been made on an unadvertised vacancy as well as for not being properly entered in the dispatch register of the Directorate of Higher Education. The photocopy of relevant page of dispatch register is being annexed as Annexure No. 1.

That the Petitioner who was selectee of advertisement No. 41 and stood at serial No. 1 in the waiting list of the General Category in the Agriculture Chemistry subject was given placement in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur on the post which fallen vacant due to single transfer Dr. Pramod Kumar, Reader, Agricultural Chemistry to C.C.S. P.G. College, Machra, Meerut vide order dated 23.11.2010.

That it is pertinent to submit that the post on which the Petitioner was given placement was neither notified to the Commission nor it was advertised by the Commission in its advertisement No. 41 (Annexure 1 to the writ petition).

That the Hon''ble Supreme Court in Kamlesh Kumar Sharma''s case clearly held that the placement of a selected candidate can not be made on an unadvertised post. It is humbly submitted that as per ruling given by the Hon''ble Apex Court the placement of a candidate is to be within the vacancies which has been advertised and not beyond it. The photocopy of judgment dated 9.2.1998 K.K. Sharma v. Yogesh Kumar Gupta is being annexed as Annexure No. 2.

That the State Government vide letter No. 2324/Sattar-5-2010 dated 4.12.2010 has directed the Director, Higher Education not to implement the orders passed by the then Director, Higher Education as such orders were not properly issued and entered in the dispatch register of the Directorate of Higher Education.

That the orders issued from 1.11.2010 to 30.11.2010 by the then Director, Higher Education were reviewed by the Director, Higher Education and it was found that the order dated 23.11.2010 of placement of Petitioner was not in accordance with law.

That in view of the facts and circumstances stated here in above paragraph it is most humbly submitted that the impugned order dated 3.1.2011 is just fair and reasonable and does not suffer from any legal infirmity.

That the instant instructions is being submitted in compliance of the Hon''ble Court''s order dated 21.1.2011. It is most humbly prayed that the Hon''ble Court may kindly be pleased to take this instruction on record.

Dr. (Ramanand Prasad) Director, Higher Education, U.P., Allahabad

It is not denied that the Petitioner was placed at serial No. 1 in the waiting list in general category in ''Agriculture Chemistry'' in the selections by the Commission in pursuance to Advertisement No. 41, and was given placement order dated 23.11.2010, in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur. It is also not denied that the post in question had fallen vacant due to single transfer of Dr. Promod Kumar, Reader, Agricultural Chemistry to C.C.S. P.G. College Machra, Meerut, for which permission to transfer was given on 28.6.2007, after the advertisement No. 41, was issued by the Commission. On these admitted facts, it is apparent that the post on which the Petitioner was given placement had fallen vacant on the single transfer of Dr. Promod Kumar, much after the advertisement, was issued by the UP Higher Education Commission on 7.2.2007, and that it was neither requisitioned by the College, advertised nor any interview was held for it by the Commission.

In Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and others, the Supreme Court considered and interpreted the provisions of Sections 12, 13(2), (4), 14 of the U.P. Higher Education Service Commission Act, 1980 as amended by Act No. 2 of 1992 and held that an unadvertised vacancy cannot be offered to the candidate selected by the UP Higher Education Service Commission in pursuance to the advertisement. In paragraphs 14 to 17 of the judgment, the Supreme Court held as follows:

We find, after giving our careful consideration that in case the Appellant''s argument is accepted by giving wider interpretation to the word "otherwise", it would thwart the very object of the Act. In other words it would permit the filling of the vacancy occurring which was never advertised and a person in the select list panel, even though not applying for any vacancy, would be absorbed. Hence would be limiting the sphere of selection in contradiction to be object of the provision to draw larger applicants by advertising every vacancy to be filled in. We have no hesitation to say that any appointment to be made on a vacancy occurring in the succeeding year in question for which there is no advertisement under the provisions of Sub-section (4) of Section 12, the person on the panel list of preceding academic year in question, cannot be absorbed or be appointed. The word "otherwise" has to be read as ejusdem generis that is to say in group similar to death, resignation, long leave vacancy, invalidation, person not joining after being duly selected. In other words, it would be a case of unforeseen vacancies which could not be conceived u/s 12(2). Section 12(2) conceives of a vacancy which is existing on the date the vacancy is to be advertised and which is likely to be caused in future but constricted for a period ending in the ensuing academic year in question. The words "likely to be caused" u/s 12(2) are followed by the words "during the course of the ensuing academic year" that is any person likely to retire by the end of the academic year in question. In other words, such vacancies could be foreseen and not unforeseen. While vacancies u/s 13(4) are unforeseen vacancies which fall under the group, death and/or resignation. Hence the word "otherwise" cannot be given the wide and liberal interpretation which would exclude large number of expected applicants who could be waiting to apply for the vacancies occurring in the succeeding year in question.

In the aforesaid case of Surinder Singh (AIR1997 SCW 3961) (supra) relied upon by the Appellant, the Court also holds in clear words:

It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised.

It is not necessary to go into the question, to the portion relied upon by the Appellant in the aforesaid case of Surinder Singh (AIR1997 SCW 3961) as that is not the position here, nor set up before the High Court or in the S. L. P. in the pleadings in exceptional circumstances or in an emergent situation and that too by taking a policy decision such appointment could be made. We find that in the present case neither there is any exceptional circumstances, emergent situation or any policy decision in this regard nor there is anything on the record to suggest the same. This apart, in the present case in view of clear provision in the Act there is no scope from deviating from the clear mandate that is to absorb any vacancy after due advertisement. Hence it would be of no avail to the Appellant. Sections 12 and 13, as we have found above, lead to inescapable conclusion that the appointment on the regular vacancies occurring u/s 12(2) could only be made by advertisement under the provision to Sub-section (4) of Section 12. This will ensure proper teaching and maintaining the standard of institution.

Of course, the filling of vacancies under Sub-section (4) of Section 13 on the vacancies already advertised arises only in case the person does not join or on account of death or resignation or person after joining, becomes invalid or such unforeseen circumstances. In other words, all the circumstances has to be within the vacancies already advertised and not beyond it. The sphere of Sub-section (4) of Section 13 is within the vacancies for which the Commission took interview or the examination, as the case may be, under Sub-section (1) of Section 13. Sub-section (2) which says that the list so prepared shall be valid till the receipt of a new list from the commission only means that in case there is delay in the next new list and any vacancy occurs on account of the unforeseen reason within the vacancies advertised, the said vacancy can be filled up under Sub-section (4) of Section 13. The list would not come to an end after a period of one year, as was earlier, and would continue for a limited purpose as explained above till the selection in the next academic year in question is made and recommendations are sent with a fresh list.

Shri Shailendra, learned Counsel for the Petitioner submits that by subsequent letter dated 13.1.2011 sent to all Regional Higher Education Officers, Dr. Ramanand Prasad, Director, Higher Education, UP Allahabad has observed that on the verification of the placement letters from the dispatch register, it was found that during the period from 1.11.2010 to 31.11.2010 a number of letters were not found in the dispatch register. The number of the letters, for which information was called, have been detailed in the letter. He submits that now since it is admitted that the letter in question in respect of the Petitioner is not mentioned in the letter dated 13.1.2011, its genuineness shall be deemed to be verified.

In the present case since the order of placement, signed by the outgoing Director of Education (Higher Education) has been cancelled, on the ground that it was issued on a vacancy which was neither requisitioned, nor advertised and is against the law as declared by Supreme Court, the provisions of Section 35 of U.P. State Universities Act, 1973, for dismissal, removal, or reduction of rank or punishment by Committee of Management of the College, without prior approval of the Vice Chancellor, are not attracted.

Since we have held that the Petitioner could not be placed and appointed after being picked up from the waiting list at serial No. 1, in the general category on the vacancy, which was neither requisitioned, nor advertised, in view of the Kamlesh Kumar Sharma''s case, the placement order could not have been issued.

The writ petition is dismissed.