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PETITIONER: KAMLESH KUMAR SHARMA

       Vs.

RESPONDENT: YOGESH KUMAR GUPTA & ORS.

DATE OF JUDGMENT:       09/02/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                THE 9TH DAY OF FEBRUARY, 1998 Present:                Hon’ble Mr Justice K. Venkataswami                Hon’ble Mr. Justice A.P. Misra Shrish Kumar Misra, Adv. for the appellant Sunil Kumar  Jain, T.N.  Singh, Misra  and B.M. sharma, Adv. for the Respondents.                       J U D G M E N T      The following Judgment of the Court was delivered: MISRA, J.      The   question   raised   in   this   appeal   is   the interpretation of Section 13(4) of the U.P. Higher Education Services Commission  Act, 19980  (hereinafter referred to as ‘the Act’) as amended in 1992.      The appellant  interprets  that  the  vacancies  to  be filled in  under this  sub-section are  not only those which occur on  account of  death or resignation but would include any other  vacancy occuring till another list is sent by the commission under  Section 13(2)  of the Act. In other words, it would  also include vacancies not advertised but occuring even  for   the  subsequent   academic  year.  If  order  to appreciate the question raised, the background and the facts would be useful, which are stated:      Prior to the aforesaid Act, the appointment to the post of teachers  in the  Non-Governmental Colleges affiliated to the various  Universities in  the State of Uttar Pradesh was made by  the Selection  Committee of  the management  of the concerned college. For various reasons, the said process was not found to be congenial and the aforesaid Act was enacted. Sections 12  or  14  of  the  Act  contained  procedure  for appointment of  teachers as  well as  Principals. Section 14 provided for  the appointment  of teachers  on ad hoc basis. Since this  provision was  widely abused  and  mis-used,  as large number  of teachers  were appointed  on the  basis  of favourtism and  not on  merits, this  was deleted  in  1992, wherein both  Sections 12 to 14 were substituted by the U.P. Act. No.  2 of  1992. In fact by this, Section 12 of 14 were drastically amended.  Amended Section  1(1) provided,  every appointment of  a teacher is to be made by the management in accordance  with   the  provisions   or  the   Act  and  any

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appointment made  in contravention  thereof is  void.  Under Sub-section  (2),  the  management  has  to  intimate    the existing vacancies  and the  vacancies, likely  to be caused during the  course of  the academic year, to the Director at such time  and in  such in such manner as may be prescribed. Though prescribed  under rules  but not  satisfactorily. The academic year is also defined through the Explanation of the same section to mean "period of 12 months commencing on July 1". Under  sub-section (3),  the Director  notifies  to  the commission  subjectwise   consolidated  list   of  vacancies intimated to  him from  all colleges.  Under proviso to sub- section (4),  the commission  has to  give wide publicity in the  State  to  the  vacancies  notified  to  draw  talented persons. Under  Section 13,  the commission  recommends  the names of  the candidates found most suitable in each subject and such  names have  to be  arranged in the order of merit. The recommendation  has to  be 25%  more than  the number of vacancies in  that subject.  Sub-section (2)  of section  13 enables the  validity of such a list till the receipt of the new list from the commission. This is departure from the old provision under which the period was only for one year. Sub- section (4)  refers to  the appointment  to be made from the persons in the said list in case of vacancy occurring due to death,  resignation   or  otherwise.  For  ready  reference, Sections 12,13 and 14 of the Act are reproduced below:      "12. Procedure for appointment of      teachers-      (1) Every  appointment as a teacher      of any college shall be made by the      management in  accordance with  the      provisions of  this Act  and  every      appointment made  in  contravention      thereof shall be void.      (2) The  management shall  intimate      the  existing   vacancies  and  the      vacancies,  likely   to  be  caused      during the  course of  the  ensuing      academic year,  to the  Director at      such time  and in  such manner,  as      may be prescribed.           Explanation   the   expression      academic year  means the  period of      12 months commencing on July 1.      (3) The  director shall  notify  to      the commission  at such time and in      such manner  as may be prescribed a      subject wise  consolidated list  of      vacancies intimated to him from all      colleges.      (4)  The  manner  of  selection  of      persons  for   appointment  to  the      posts  of  teachers  of  a  college      shall     be  such,   as   may   be      determined by regulation:           Provided   that the commission      shall  with   a  view  to  inviting      talented    persons    give    wide      publicity  in   the  State  to  the      vacancies notified to it under sub-      section (3):           Provided  further   that   the      candidates  shall  be  required  to      indicate their  order of preference      for the various colleges, vacancies      wherein have been advertised.

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    13.  Recommendation  of  commission      (1) the  commission shall,  as soon      as possible, after the notification      of  vacancies   to  it  under  sub-      section (3)  of  section  12,  hold      interview (with  or without written      examination of  the candidates  and      send  to   the  Director   a   list      recommending such  number of  names      of candidates  found most  suitable      in each  subject as  may be, so far      as  practicable,   twenty-five  per      cent  more   than  the   number  of      vacancies  in  that  subject.  Such      manes shall be arranged in order of      merit show  in the interview, or in      the examination  and interview   if      any examination is held.      (2)   The   lists   sent   by   the      Commission shall  be valid till the      receipt of  a  new  list  from  the      commission.      (3) The  Director shall  having due      regard in the prescribed manner, to      the  order  to  preference  it  any      indicated by  the candidates  under      the second  proviso to  sub-section      (4) of  Section 12, intimate to the      management the  name of a candidate      from the  list referred  to in sub-      section (1)  for being appointed in      the vacancy  intimated  under  sub-      section (2) of Section 12.      (4) Where  a vacancy  occurs due to      death,  resignation   or  otherwise      during the  period or  validity  of      the list referred to in sub-section      (2) and  such vacancy  has not been      notified to  the  commission  under      sub-section (3)  of Section 12, the      Director  may   intimate   to   the      management the  name of a candidate      from such  list for  appointment in      such vacancy.      5. Notwithstanding  anything in the      proceeding     provision,     where      abolition of any post of teacher in      any  college,   services   of   the      persons substantively  appointed to      such post  is terminated  the State      Government may  make suitable order      for his  appointment in  a suitable      vacancy,  whether   notified  under      sub-section (3)  of Section  12  or      not  in   any  other  college,  and      thereupon   the    Director   shall      intimate    to    the    management      accordingly.      6. The  Director shall  send a copy      of the  intimation made  under sub-      section (3)  or sub-section  (4) or      sub-section (3)  to  the  Candidate      concerned.      14.  Duty  of  management  (1)  the      management shall,  within a  period

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    of  one  month  from  the  date  of      receipt of  intimation  under  sub-      section (3)  or sub-section  (4) or      sub-section  (5)   of  Section  13,      issue  appointment  letter  to  the      person   whose    name   has   been      intimated.      (2) Where the person referred to in      sub-section (1)  fails to  join the      post within the time allowed in the      appointment letter  or within  such      extended time as the management may      allow in this behalf, or where such      person is  otherwise not  available      for  appointment,   the   Director,      shall on request  of the management      intimate fresh  name from  the list      sent by  the commission  under sub-      section (1)  of Section  13 in  the      manner prescribed."      The case  of the  appellant is that the holds doctorate degree, Ph.D  in Physics;  Degree as  High Level fellow from Government of  France and  I.C.I.P. Fellow  from UNESCO. The appellant is  working as  a Reader  in R.K. College, Shamli, Muzaffar  Nagar.  On  20th  April,  1992,  pursuant  to  the advertisement No.  18 issued  by the  U.P. Higher  Education Service Commission,  through which applications were invited for the  post of Principals for non-governmental colleges in different Universities  within the  State of  Utter pradesh, the appellant  applied  for  the  same.  The  appellant  was interviewed and  on the  basis of  the list  prepared by the said commission,  the Director  intimated the  names of  the various selectees to the managements of various colleges for being appointed as Principals. As per the policy existing at the relevant  time, the  appointment could  only  be  of  an incumbent in  case the subject in which he is specialised is taught in  the said  institution. In  the present  case, the subject  of   study   of   the   appellant   is   "Physics". Incidentally, there  were only  four colleges  where Physics was being  taught and four selectees  of different subjects, who were  higher in the order of merit and whose subjects of studies were  also available in the colleges, were appointed in those  four colleges.  Hence, the  appellant could not be appointed in  the absence  of Physics being taught as one of the  subjects  therein.  Because  of  this,  thereafter  the selectees, who were placed below the appellants in the merit list, were  also appointed  as Principals in the merit list, were also  appointed as  Principals in  respective  colleges where their subjects of studies were being taught.      On the  1st July,  1993, a post of Principal in Maharaj Singh D.G. College, Saharanpur fell vacant on the retirement of mr.  R.P. Sharma,  who was  a regular  Principal  of  the college. The  Director or  Higher Education  on  20th  July, 1993, while exercising power under Section 13(4) of the Act, directed the  management of  the said college to appoint the appellant as  Principal. Against  this direction, respondent No.1 herein,  namely, Dr.  Yogesh Kumar  Gupta, filed a writ Petition in  the  High  Court  for  quashing  of  the  same. Respondent No.1  exerted therein  that in fact he is working in the  said college  as Lecturer  in Physics since 1956. He claimed that  when the  post of  Principal tell  vacant,  by virtue of statute 13.20 of the Meerut University Act, he was appointed as  Officiating Principal of the aforesaid college and he  assumed charge  as Principal of the College. On 19th June, 1995,  the High  Court allowed  the writ  petition and

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quashed  the  said  order  of  the  Director.  Against  that judgment, the present appeal by special leave is preferred.      The  High   Court,  in   accepting  the  contention  of respondent No.1  relied upon  the case of State of Bihar and another Vs.  Madan Mohan  Singh and others : AIR 1994 SC 765 and held the present case to be similar to the facts of that case. It  was held  that  there  was  no  occasion  for  the Director to  exercise  power  under  Section  13(4)  when  a regular vacancy  has  arisen  after  superannuation  of  the Principal in  the concerned college. The Director took wrong recourse under  the said  provisions by  sending the name of the appellant which is not contemplated therein. Since there was no  advertisement which  is necessary  for such vacancy, hence the said order was bad and was quashed.      Learned counsel  for the  appellant  vehemently  argued that the  vacancies under  Section 13(4)  when it  refers to "occuring due  to death, resignation or otherwise", the word "otherwise" be not read as a ejusdem gener is but in a wider connotation covering  all  vacancies,  it  would  cover  all vacancies including  the vacancies referred to under Section 12(2) but  prior to  the intimation by the management may be for the  subsequent academic year. It is not in dispute that the appellant  applied for  the vacancies  published on 20th April, 1992.  As aforesaid,  it covered all the vacancies of the academic year which would be from 1st July, 1991 to 30th June 1992.  In other  words, not only the existing vacancies on the  date of publication of the advertisement, i.e., 20th April,  1992,  but  till  30th  June,  1992.  Section  12(2) empowers filling of the vacancies likely to be caused during the course  of ensuing  academic year.  The academic year is defined under  explanation of that sub-section as the period of 12  months commencing  on July 1. The appellant contends, in view  of Section 13(2), that the life of the list sent by the commission  is  extended  till  the  next  new  list  is received from  the commission, the list in question would be alive, even beyond one year. The vacancy as aforesaid, hence occuring on  1st July,  1993, even though falling in another academic year  would also be covered by the word "otherwise" and hence appointment of the appellant by means of the order of Director is valid.      The contention is that the purpose for amending the old law was  to remove  the adhocism  hence the word "otherwise" should  not   be  interpreted  in  a  restricted  sense.  If interpreted in  a wind  sense, any vacancy accruing till the next list  by the  Commission would be absorbed and hence no vacancy would  remain untilled for long. I here should be no difficulty  to  make  appointment  from  the  duly  selected persons who  are in  the panel  of the  select list, even it there is  any delay  in making  selection for the subsequent academic year.      On behalf  of the  State, supporting  appellant’s case, learned counsel emphasised that the purpose of 25% more than the vacancies advertised under sub-section (1) of Section 13 is only  to cover  such exigencies,  namely to  appoint such persons from  the said  list for  any  subsequent  vacancies occuring not  only for  the vacancy advertised but which may occur in any subsequent academic year in question.      Learned counsel  for the appellant referred to Surinder Singh and  Others Vs. State of Punjab and another : (1997) 8 SCC 488. Reliance is placed on paragraph 13:      "State   can   deviate   from   the      advertisement and make appointments      on posts  falling vacant thereafter      in exceptional  circumstances  only      or in  an  emergent  situation  and

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    that  too   by  taking   a   policy      decision in  that behalf. Even when      filling  up   of  more  posts  than      advertised is  challenged the court      may  not,   while  exercising   its      extraordinary         jurisdiction,      invalidate the  excess appointments      and may  mould the relief in such a      manner as  to strike a just balance      between the  interest of  the State      and  the   interest     of  persons      seeking public employment."           He   also    relied   on   the      following words in paragraph 14:           "A waiting  list  prepared  in      service matters  by  the  competent      authority is a list of eligible and      qualified candidates  who in  order      of merit  are placed below the last      selected candidate.  How it  should      operate and  what is its nature may      be governed by the rules."      The contention  is that  the other  observations in the said decision  even though  may be  said to  be contrary  to contention raised  by the  appellant but the same is diluted when   it    approves   an    appointment   in   exceptional circumstances. It  further approves if there be any relevant rules in  this regards.  In the  present case  the appellant contends that  under sub-section (4) of section 13, there is a specific  provision to include such vacancies, hence it is within the  permissible law  and  rules  and  as  such,  the appointment of the appellant is valid.      On the  other hand  learned counsel for respondent No.1 argued that  the word  "otherwise" under Section 13(4) is to be read  as a  ejusdem general  and would  cover  only  such vacancies which  could be grouped with the like words "death and resignation"  that is  to say unforeseen vacancies. This would not  include the  vacancies   occuring for  succeeding academic years.      Having heard learned counsel for the parties and having gone though the relevant Act and the rules, we find that the aforesaid amendments  were brought  in to eliminate adhocism and irregular  appointment of  teachers.  This  is  also  to eliminate favoritism,  nepotism and other processes, through which  unqualified   undesirable  persons   were   appointed excluding meritorious  teachers. The  proviso to sub-section (4) of  Section  12  provides  for  wide  publicity  through advertisement for  inviting talented  persons for filling up such vacancies,  as notified under sub-section (3). This was keeping in  mind that whenever such vacancy occurs selection should be  from a  larger sphere through wide advertisements which would  include. Large appointment made for any vacancy not properly advertised limits sphere where it may either as under the  old Act  to be regularised or under the principle of equity,  sympathy to be regularised it a case be made out which erodes  the very  foundation of a teaching institution by lowering  the teaching  standard.  It  is,  keeping  this objective, the aforesaid amendments in 1992 were brought in. The relevant  portion of Statement of Objects and Reasons of the aforesaid Act in this regard is reproduced below:-           " Prefatory  Note Statement of      Objects  and   Reasons.  The  Uttar      Pradesh Higher  Education  Services      (Commission) Act, 1980   (U.P.  ACT      No. 16 of 1980) has been enacted to

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    establish a  Service commission for      the  selection   of  teachers   for      appointment   to    the    colleges      affiliated to  or recognised  by  a      University. Section  16 of  the ACT      empowered the  management of Degree      Colleges   to    appoint   ad   hoc      teachers. Under  this provision  ad      hoc teachers were appointed  in the      non-Government     colleges     who      continued to  work from the date of      their appointment.  These  teachers      had been  demanding  regularisation      their service.  It was  decided  to      amend the aforesaid ACT:           (1)    To    regularise    the      qualified and otherwise eligible ad      hoc teachers  appointed during  the      period between  January 3, 1984 and      January 30, 1991;           (2)  To   abolish  system   of      appointing ad hod teachers;           (3) To  streamline the  manner      of   selection   of   teachers   by      providing   that    subject    wise      consolidated number   of  vacancies      likely  to   be  caused  during  an      academic year  shall be notified to      the commission  which will send the      list  of  candidates  selected  for      appointment to  the  Director,  who      will   intimate    the   names   to      management        for        making      appointments;"      We find, after giving out 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  occuring 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  the 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 occuring  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 preceeding 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 conceiver under   Section 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" under Section 12(2) are  followed by  the words  "during the course of the ensuring 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  for seen and not unforeseen. While vacancies under Section 13(4) are unforeseen vacancies which fall under  the group,  death and/or  resignation. Hence the

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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 occuring in the succeeding year in question.      In the  aforesaid case of Surinder Singh (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 poser  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  till 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 as that is not the position here, nor set up before  the High  Court or in the S.I.P. in the pleedings 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 or 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. Section 12 and 13, as we have found above, lead  to inescapable  conclusion that the appointment on the  regular vacancies occuring under Section 12(2) could only be  made by  advertisement under  the proviso  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 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

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and recommendations are sent with a fresh list.      In Hoshiar  Singh Vs. State of Haryana and others: 1993 Supp (4)  SCC 377,  selection of candidates by the selection committee in  excess of  requisition was held to be illegal. it was held :-           "Since the requisition was for      eight posts of inspector of Police,      the Board  was required to send its      recommendations  for   eight  posts      only. The  Board, on its own, could      not recommend  names of  19 persons      for  appointment  even  though  the      requisition  was  for  eight  posts      only."      In Ashok Kumar and others Vs. Chairman, Banking Service Recruitment Board  and others  : 1996  (1) SCC 283 the Court held :           "Article 14  read with Article      16(1) of the constitution enshrines      fundamental right  to every citizen      to    claim    consideration    for      appointment to  a  post  under  the      State.  Therefore,   vacant   posts      arising  or   expected  should   be      notified inviting applications from      all  eligible   candidates  to   be      considered for  their selection  in      accordance with  their  merit.  The      recruitment of  the  candidates  in      excess of the notified vacancies is      a denial  and  deprivation  of  the      constitutional right  under Article      14  read   with  Article  16(1)  of      Constitution.     The     procedure      adopted, therefore,  in  appointing      the persons  kept  in  the  waiting      list  by   the  respective  Boards,      though  the  vacancies  had  arisen      subsequently without being notified      for         recruitment,         is      unconstitutional.  However,   since      the appointment  have already  been      made and none was impleaded, we are      not  ancllined  to  interfere  with      these matters  adversely  affecting      their     appointments,     However      hereafter  the   respective  Boards      should  notify   the  existing  and      excepted vacancies  and Recruitment      Board  should   get   advertisement      published  and  recruitment  should      strictly be  made by the respective      Boards    in  accordance  with  the      procedure to the notified vacancies      but not  to any  vacancies that may      arise   during   the   process   of      selection."      The view  taken in  this case  is the  same as  we have round above.      As  per  the  scheme  of  the  Act  and  the  aforesaid provisions,  for   each  academic   year  in  question,  the management  has  to  intimate  the  existing  vacancies  and vacancies likely  to be  caused by  the end  of the  ensuing academic year  in question.  Thereafter, the  Director shall notify the  same to  the Commission  and the  Commission, in

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turn, will  invite applications  by giving wide publicity in the State  of such vacancies. The vacancies cannot be filled except by following the procedure as contained therein. Sub- section (1)  or Section  12 has incorporated in strong words that any appointment made in contravention of the provisions or the  ACT shall  be void . This was to ensure no back door entry  but   selection  only  as  provided  under  the  said sections.      We have  also perused  the Judgment  given by  the High Court. We  find that  the order of the Director, under which the appellant claims appointment, was rightly quashed by the High Court.      It was also argued, though not with the same vehemence, that respondent  No. 1  has no locus standi to challenge the said   order of  the Director. Apart from the fact that this question was  never raised  by the  appellant either  in the writ petition  before the High Court or in the Special leave petition, we  find that  respondent No.1 has interest, as he was officiating  Principal appointed  under statute 13.20 of the Meerut  University. it was argued by learned counsel for the appellant that the statute  contemplates the appointment of a  Principal should  be of  a senior  most teacher  which respondent No.1  is not. Repelling this argument, respondent No. 1 has pointed out through an affidavit before this Court that since  the senior most teacher declined this after, the next senior  most, i.e.  respondent No.1,  was appointed  to which there  was no denial. For all these reasons, we do not find  any  substance  in  the  objection  of  the  appellant regarding locos standi of respondent No.1.      For the aforesaid reasons, we do not find  any merit in the contentions  raised  by  the  learned  counsel  for  the appellant. Hence,  the appeal  fails and is dismissed. Costs on the parties.