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CASE NO.: Appeal (civil)  2442 of 2007

PETITIONER: STATE OF U.P. & ANR

RESPONDENT: NIDHI KHANNA & ANR

DATE OF JUDGMENT: 11/05/2007

BENCH: C.K. Thakker & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.      2442          OF 2007 (Arising out of S.L.P. (C) No. 10984 of 2004)

C.K. Thakker, J.

1.      Leave granted.          2.      This appeal is directed against the judgment and  order passed by the Division Bench of the High Court of  Judicature at Allahabad on March 15, 2004 in Civil  Miscellaneous Writ Petition No. 45418 of 2003.  By the  said judgment, the High Court directed the appellants to  give an appointment letter to respondent No. 1 (writ  petitioner) for the post of Lecturer in Geography in C.M.P.  Degree College, Allahabad ’forthwith’. 3.      Short facts giving rise to the present appeal are that  in June, 2000, Uttar Pradesh Higher Education Services  Commission (’Commission’ for short) advertised under  Advertisement No. 29, vacancies of Lecturers in different  non-Government Degree (P.G.) Colleges.  In pursuance of  the said advertisement, respondent No. 1 (writ petitioner)  applied for the post of Lecturer in Geography in August,  2000.  A Select List was prepared on July 19, 2001.   Respondent No. 1 was declared selected, but her name  was placed at Serial No. 1 in the Wait-List of General  Category candidates.  It is the case of the appellants that  the Director of Higher Education, U.P., Allahabad,  appellant No. 2, herein issued an order on November 23,  2002 by which respondent No. 1 was appointed as  Lecturer in Geography in R.G. Girls College, Meerut.  According to the appellants, however, respondent No. 1  did not join at Meerut College and hence another  candidate was appointed and placement of respondent No.  1 was cancelled. On March 5, 2003, another merit list was  prepared pursuant to Advertisement No. 32 and names of  selected candidates were received by the Director on  March 7, 2003.   On July 3, 2003, respondent No. 1 met  the Director and stated that though she was selected as  Lecturer in Geography and was placed at Sr. No.1 in Wait- List, she had not received a Letter of Appointment.   Respondent No. 1 also stated to the Director that there  was a vacancy in C.M.P. Degree College, Allahabad and  the said College had no objection to appoint respondent  No. 1.  She, therefore, prayed that she be appointed in  C.M.P. Degree College, Allahabad.  The prayer was,

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however, rejected by the appellants on the ground that  new list was prepared in March, 2003 under  Advertisement No. 32.  Respondent No. 1 was selected  under Advertisement No. 29, but the said list had lapsed  as it was valid only till new list was prepared. Hence, even  though C.M.P. College, Allahabad had no objection for  appointment of respondent No. 1, she could not be  appointed after the new list was prepared.  This led  respondent No. 1 to filing of writ petition.  It was her case  in the petition that she had never received any order or  communication about her appointment as Lecturer in  Geography in Meerut College nor was she informed about  her placement in that college.  Though the appellants  herein filed an affidavit controverting the assertion of  respondent No. 1 (writ petitioner), the Court held that  stand of the Authorities was not tenable and they were  responsible for not giving appointment to respondent No.  1 and had acted arbitrarily.  Since respondent No. 1 (writ  petitioner) was selected by the Commission and was wait- listed and as there was vacancy of Lecturer in Geography  in C.M.P. Degree College, Allahabad, the petition was  allowed and a Writ of Mandamus was issued directing the  authorities to appoint respondent No. 1 in C.M.P. Degree  College, Allahabad ’forthwith’. 4.      The above order is challenged by the Authorities by  filing the present appeal.  On July 14, 2004, notice was  issued and interim stay was granted against the order of  the High Court.  Affidavits and further affidavits are filed  thereafter.  Considering the controversy and interim order  

passed by this Court, direction was issued to the Registry  to place the matter for final hearing and that is how the  matter has been placed before us. 5.      The learned counsel for the appellants contended  that the High Court has committed an error of law in  directing the Authorities to appoint respondent No. 1  forthwith in C.M.P. Degree College, Allahabad.  It was  submitted that once new select-list was prepared in  March, 2003, the old list came to an end and no  appointment could be made from that list. It was also  submitted that according to the appellants, respondent  No. 1 was intimated that she was appointed in Meerut  College, but she did not join the said college and hence  another person was appointed.  She, therefore, had no  occasion to make any grievance.  The order passed by the  High Court, therefore, deserves to be set aside by ordering  dismissal of the petition filed by respondent No. 1 (writ  petitioner). 6.      The learned counsel for respondent No. 1, on the  other hand, supported the order of the High Court.  He  submitted that admittedly respondent No. 1 was selected  by the Commission.  She was at Serial No. 1 in the Wait- List.  It was, therefore, incumbent on the Authorities to  consider her claim when a case for appointment of a  candidate from wait-list arose.  She had never received  any communication/order that she was appointed in  Meerut College and it was only in July, 2003 that the  Director told her that she did not joint at Meerut College.   She, therefore, made a prayer to allow her to join in  C.M.P. College, Allahabad and also obtained no objection  certificate from the said college.  Respondent No. 1 had  thus suffered without there being any fault on her part.   The High Court, in the circumstances, was right in  directing the Authorities to give her appointment in

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Allahabad College and the said order requires no  interference. 7.      Having heard the learned counsel for the parties, in  our opinion, the High Court was not justified in issuing a  Writ of Mandamus directing the appellants to appoint  respondent No. 1 (writ petitioner) as Lecturer in  Geography in C.M.P. Degree College, Allahabad.  8.      Before we consider the rival contentions of the  parties, it would be appropriate if we refer to the statutory  provisions.  In 1980, an Act has been enacted known as  the Uttar Pradesh Higher Services Commission Act, 1980  (hereinafter referred to as "the Act").  The Preamble of the  Act declares that it had been enacted with a view "to  establish a Service Commission for the selection of  teachers for appointment to the colleges affiliated to or  recognized by a University or for matters connected  therewith or incidental thereto".  "Commission’ is defined  as the Higher Services Commission established under  Section 3.  Chapter II deals with establishment of  Commission, its composition, terms of office and  conditions of service, etc.  Chapter III enumerates  functions of the Commission and its powers and duties.   Sections 12 and 13 as then stood  are material and may  be re-produced; 12. Procedure for appointment of  teachers.\027(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.\027The 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 lit 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  regulations: 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.  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

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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 names, shall be arranged in  order of merit shown 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 of  preference if 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 of  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 provisions, 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 (5) to the Candidate  concerned.                  (emphasis supplied)

9.      Section 14 imposes a duty on the management to  appoint teachers pursuant to the order passed by the  Director.  Section 15 empowers Director to get information  from the Management so as to enable him to take an  appropriate action.  The Commission is also authorized to  call for information from the Management of any college  as it thinks fit. It also has power to inspect records and  registers of the Management. 10.             It is the case of the appellants that appellant  No. 2, Director of Higher Education informed respondent  No. 1 as also R.G. College, Meerut on November 23, 2002  that a vacancy had arisen in the said college, of Lecturer  in Geography due to non-joining by one Ku. Shradha  Shrivastava.  It was, therefore, decided to appoint Ku.  Nidhi Khanna, (respondent No. 1 herein : writ petitioner)   pursuant to the recommendation made by the  Commission under sub-section (4) of Section 13 of the  Act. The Management was, therefore, directed to issue an  order of appointment by registered post within thirty days  from the date of receipt of the letter appointing respondent  No. 1 as Lecturer in Geography in the said college.   Likewise, respondent No. 1 also was informed by the

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Authorities by a registered letter. It is no doubt true that  according to respondent No. 1, she had not received any  such letter, but even in the High Court, the case of the  appellants was that the letter was sent by registered post  to respondent No. 1 at the address supplied by the  candidate, i.e. respondent No. 1, but she did not join  Meerut college. It was, in these circumstances that  another person came to be appointed.  It was, therefore,  submitted that respondent No. 1 had no right to insist for  appointment after the new list was prepared. 11.             The learned counsel for the appellants, in this  connection, referred to a decision of this Court in State of  Bihar & Anr. v. Madan Mohan Singh & Ors., (1994) Supp  (3) SCC 308.  A three-Judge Bench of this Court there  held that a select list prepared for filling up of vacancies  would be valid for filling up of those vacancies for which it  was prepared.  For other vacancies, fresh list will have to  be prepared and no appointment could be made from the  list prepared for vacancies not advertised. In Madan  Mohan Singh, applications were invited by the Government  for filling up of 32 vacancies of Additional District &  Sessions Judges against direct recruitment quota. A list of  128 candidates (32x4=128) was prepared, but since last  two candidates secured equal marks, names of both were  included at Sl. No. 128 and 129.  The High Court  conducted oral interview and a panel of 32 candidates was  prepared.  Selected candidates were asked to appear for  Medical Test on March 2, 1991.  The Full Court, however,  sought to include further vacancies as well and decided to  fill up those vacancies that arose subsequently, from the  merit list which was already prepared.  This Court held  the action of the High Court invalid as no appointment  could be made from a list in respect of vacancies that  arose subsequently. 12.             A question similar to the one which we are  called upon to decide, came up for consideration before  this Court as to interpretation of Sections 12, 13 and 14 of  the Act in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta  & Ors., (1998) 3 SCC 45 : JT (1998) 1 SC 642.  In Kamlesh  Kumar, an advertisement was issued on April 20, 1992 by  the Commission for certain vacancies of Principals.  The  appellant applied for the said post and was included in the  Select List.  Due to certain reasons, however, he could not  be appointed.  On July 1, 1993, a post of Principal in one  college fell vacant on account of retirement of the  incumbent thereof.  The Director of Higher Education  purportedly exercising power under sub-section (4) of  Section 13 of the Act directed the Management of the  College to appoint the candidate who was in the Select List  as the Principal.  The action was challenged.  It was  contended that no appointment could have been made as  the advertisement was issued on April 20, 1992 and the  post of Principal fell vacant on July 1, 1993.  The  Authorities, on the other hand, contended that the word  ’otherwise’ occurring in Section 13(4) of the Act should not  be read ejusdem generis and was wide enough to cover and  take within its sweep all vacancies including the vacancies  for which interview might not have been held.  After  quoting the relevant provisions of the Act, this Court  stated; "Having heard learned counsel for the parties and  having gone through the relevant Act and the Rules, we  find that the aforesaid amendments were brought in to  eliminate ad hocism and irregular appointment of  teachers. This is also to eliminate favourtism, nepotism  and other processes, through which unqualified,

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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 applicants competing. Both, ad hoc  appointment and 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 if a case be made out  which erodes the very foundation of a teaching institution  by lowering the teaching standard".  13.             The Court observed; 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 it 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 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 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 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 under Section 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.  14.             In our opinion, in view of the above legal  position, the appellants were right in their submission  that respondent No. 1 could not be appointed in  pursuance of Advertisement No. 32 since she was selected  and empanelled pursuant to Advertisement No. 29. 15.             The learned counsel for respondent No. 1

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contended that there was no fault on her part.  It was also  stated that though the Authorities asserted that a  communication was sent to respondent No. 1 at the  address supplied by her, she had never received such so- called communication.  It was also urged that the address  at which the communication was sent was not correct  address.  It was only because of the fact that there was no  communication by the Director of Higher Education that  constrained respondent No. 1 to approach him as to what  had happened to her appointment though she was at  Serial No. 1 in the Wait-List.  Only at that time she was  informed about the order of appointment and her  placement in Meerut College but since she did not join  duty, other person was appointed.  Precisely because of  subsequent development that respondent No. 1  approached C.M.P. College, Allahabad and obtained ’No  Objection Certificate’ from the Management of that  College.  The High Court, submitted the counsel, believed  the case of respondent No. 1 and granted relief observing  that it was the mistake of the Authorities for which the  candidate should not suffer. 16.             Without expressing final opinion as to  correctness or otherwise as to assertion of respondent No.  1, even if it is believed that what respondent No. 1  contended before the High Court and before us is correct,  in our considered opinion, no writ of Mandamus could  have been issued by the High Court in the light of express  and unequivocal statutory provisions referred to  hereinabove and the declaration of law in Kamlesh Kumar  Sharma.  17.             It is an admitted fact that the first respondent  was selected and empanelled in the Wait List pursuant to  Advertisement No. 29 on July 19, 2001.  It is further not  disputed that Advertisement No. 32 was thereafter issued  and Merit List was prepared on March 5, 2003 which was  received by the Director on March 7, 2003.  Once the  above facts have been established, the statutory  provisions will come into play.  Under the said provisions  as soon as the new list is prepared, the old list comes to  an end.  The High Court, in view of the above facts, in our  considered opinion, could not have issued a writ of  Mandamus directing the Authorities to act contrary to  law.  That is not the ambit and scope of writ of  Mandamus. 18.             For the foregoing reasons, the appeal deserves  to be allowed and is allowed accordingly. The order passed  by the High Court is set aside and the writ petition filed by  the writ petitioner (respondent No. 1 herein) is ordered to  be dismissed.  In the facts and circumstances of the case,  however, there shall be no order as to costs.