Dr. Roopali Tandon vs State of U.P. and Others

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

The Petitioner was selected as Lecturer in ''Chemistry'' in pursuance to advertisement No. 41 by the U.P. Higher Education Service Commission. It is stated in the writ petition that the Petitioner was given placement in Bareilly College, Bareilly as Lecturer in Chemistry vide letter of the Director of Higher Education dated 12.10.2010, on a vacancy caused on the resignation of Dr. Sanjeev Kumar. By the impugned order dated 3.1.2011 the placement order 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 has sought instructions signed by Dr. Ramanand Prasad, Director, Higher Education, U. P. Allahabad. These instructions shall be made part of the record. The instructions are quoted as below:

Writ Petition No. 5349/2011 Dr. Rupali Tandon v. State of U.P. and Ors.

INSTRUCTIONS

The abovenoted writ petition was listed for hearing before the Hon''ble Court on 29.1.2011 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 Bareilly College, Bareilly for the reasons that the said placement has been made on an unadvertised vacancy as well as for being forged one.

That the Petitioner who was selectee of advertisement No. 41 in the Chemistry subject was initially given appointment in Ganj Dundwara P.G. College, Etah by the Director, Higher Education vide letter No. degree Arth-1 (Ayog)/2937 - 2944/2008-09 dated 4.1.2009. However, the Petitioner did not join in that college. It is pertinent to submit here that since the Petitioner was already working as Manday teacher in Bareilly College, Bareilly and was not interested in joining at Ganj Dundwara P.G. College, Etah, therefore, she did not join there.

That the Petitioner, however, approached the then Director, Higher Education and requested for change in her earlier placement order. The Director, Higher Education vide letter dated 12.10.2010 issued placement order in favour of petitioiner in Bareilly College, Bareilly against the post which fell vacant due to resignation of Dr. Rajeev Kumar. It is pertinent to submit here that the said post of Rajeev Kumar against which the Petitioner''s placement has been made, was not advertised under advertisement No. 41.

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. 1.

That in view of the judgment passed by the Hon''ble Apex Court passed in K.K. Sharma case, the placement of Petitioner in Bareilly College, Bareilly on an unadvertised post is illegal and against the ruling of the Hon''ble Supreme Court.

That it is further submitted that the verification of dispatch register of the Directorate of Higher Education revealed the fact that the placement order dated 12.10.2010 of Petitioner was not actually dispatched on 12.10.2010. In fact the aforesaid order was shown to be dispatched on 29.11.2010 without any subject details thereof. It is further submitted that the order in November 2010 passed by the then Director, Higher Education were reviewed on the direction of the State Government issued on 4.12.2010 to the Director, Higher Education. The photocopy of relevant page of dispatched register is being annexed as Annexure No. 2.

That since, the placement order was issued against the ruling held by the Hon''ble Supreme Court and the same was also not properly entered in the dispatch register of the Directorate of Higher Education, therefore, the impugned order dated 3.1.2011 passed by the Director, Higher Education 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 29.1.2011. 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

Shri Amit Saxena states that though Sections 12, 13(2), (4), 14 of the U.P. Higher Education Service Commission Act, 1980 as amended by Act No. 2 of 1992 were interpreted by the Supreme Court in Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and others, the office of the Director of Higher Education may have committed a bonafide mistake in placing the Petitioner in Bareilly College, Bareilly against the post, which fell vacant on the resignation of Dr. Sanjeev Kumar. He submits that the Petitioner was selected by the UP Higher Education Service Commission in pursuance to advertisement No. 41. The Court may direct the Director of Higher Education to place her for appointment in some other college on an advertised vacancy.

We find that the Petitioner has not disclosed in the writ petition that she was earlier placed for appointment in Ganj Dundwara P.G. College, Etah; she was not interested and did not choose to join in the College. She also did not disclose that her husband is also teaching in Bareilly College. She has also not disclosed that she was placed for appointment on an unadvertised vacancy, on her own request in pursuance to which the Director of Higher Education gave her placement vide letter dated 12.10.2010.

The vacancy in Bareilly College, Bareilly was admittedly caused on the resignation of Dr. Rajeev Kumar, who was selected by the Commission. The vacancy was thus a fresh vacancy, which was neither requisitioned, nor advertised 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 (AIR 1997 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.

16 It is not necessary to go into the question, to the portion relied upon by the Appellant in the aforesaid case of Surinder Singh (AIR 1997 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.

It is difficult for us to believe that the Petitioner was not aware that the vacancy caused on the resignation of Dr. Rajeev Kumar was not advertised, or that she and the Director of Higher Education were not aware of the interpretation given by the Supreme Court to the provisions of the Act in Kamlesh Kumar Sharma''s case. There could be no mistake or bonafide error by the then Director of Higher Education. In fact all the placement orders issued by the outgoing Director of Education (Higher Education) Dr. Mia Jan, between 1.11.2010 to 30.11.2010, the day on which he retired, were scrutinised by the State Government, and were found to be illegal, with fraudulent despatch numbers.

In the circumstances, we do not find any good ground to interfere in the matter. Before parting the matter we observe that since the Government has reviewed the orders passed by Dr. Mian Jan, the then Director of Higher Education, UP a month prior to his date of his retirement, and that the relevant pages in the despatch register of the placement orders between 1.11.2010 to 31.11.2010 were found missing, the State Government should not leave the matter un-attended. The persons found guilty in issuing these illegal orders must be brought to book and punished.

The writ petition is dismissed.