JUDGMENT Prakash Krishna, J.
1. These two writ petitions were heard together and are being disposed of by a common judgment as the facts and the issues involved in these two writ petitions are interwoven.
2. In writ petition No. 41083 of 2005 Shri D.K. Singh is the petitioner (hereinafter referred to as the petitioner). Shri Dayanand Saha is the respondent No. 4 in the writ petition No. 41083 of 2005 and he is also petitioner in the writ petition No. 43975 of 2005. Shri Dayanand Saha is hereinafter referred to as the respondent.
3. The main contest in these writ petitions is in between the petitioner -Shri D.K. Singh and the respondent - Shri Dayanand Saha. Indisputably both the petitioner and respondent are duly selected candidates by the U.P. Higher Education Service Commission (hereinafter referred to as the Commission) under advertisement No. 32 for the post of lecturer (Physics). The dispute in between the petitioner and the respondent is with regard to their placement order issued by the Director of Education (Higher).
4. The petitioner was selected as general category candidate and is at serial No. 15 of the select list while the respondent got selection at serial No. 25 of the select list and is at the top in the category of "Other Backward Classes". Thus in the combined list the petitioner has been placed at serial No. 15 while the respondent has been placed at serial No. 25.
5. The petitioner in the application form gave his first choice of placement for the College known as Udai Pratap Autonomous College, Varanasi (hereinafter referred to as the College in question) wherein the respondent is already working in the College in question as ad hoc lecturer. The Director of Education (Higher) instead of honouring the first choice given by the petitioner for placement in the College in question, asked the petitioner by means of the impugned letter dated 9th of June, 2005 to join T.D. College, Jaunpur. The grievance of the petitioner is that he being higher in merit and has given the first choice for placement in the College question should be placed in the said College and the Director of Education (Higher) illegally failed to issue the placement order for the College in question but arbitrarily issued the placement order of the petitioner to join T.D. College, Jaunpur ignoring his first choice given in the application form. The petitioner on getting the information of his placement at T.D. College, Jaunpur made a representation to the Director of Education (Higher) on 27th June, 2005. The respondent is exercising political pressure upon the authority concerned to get joining in the College in question. The Director of Education (Higher) in spite of personal interview failed to take any decision and is sitting tight over the matter and therefore the petitioner has filed the present writ petition.
6. The respondent who is petitioner in the writ petition No. 43975 of 2005 has stated that he was appointed as Lecturer (Physics) in the College in question on 1st of August, 1991 on a fixed honorarium on sanctioned vacant post. The State Government issued G.O dated 22.11.1991 for regularisation of ad hoc lecturers appointed on or before 30th June, 1991. The said government order was amended by the State Government on 26th May, 1997 and the cut off dated 30th June, 1991 for appointment was changed to 22nd of November, 1991. The further averment is that the respondent is entitled for his regularisation on the post of Lecturer in Physics under Government Order dated 26th of May, 1997. However, the Commission advertised the post of Physics Lecturer in the College in question vide advertisement No. 32 of 2002 and in pursuance thereof the respondent also applied for selection/appointment on the post of Lecturer (Physics) mentioning his first choice of placement in the application form for the College in question. It has also been stated that a report was called for by the Commission on the representation of the respondent for his regularisation and this matter is still under consideration. The respondent applied in pursuance to the advertisement No. 32 of 2002 under the Other Backward Category and in the select list under Other Backward Category his name figures at serial No. 1 whereas in the combined select list he is at serial No. 25 and he has been working on the post of Lecturer (Physics) in the College in question since 1.8.1991 with artificial break of service. Having been selected by the Commission on the post of Lecturer in Physics in pursuance to the aforesaid advertisement No. 32, he has sought for relief to the effect that the Director be commanded not to make placement of any selected candidate on the post of Lecturer in Physics in the College in question wherein he is already working on the post of Lecturer in Physics on ad hoc basis since 1st of August, 1991. The further relief which has been sought for from this Court is for issuance of a writ, order or direction in the nature of Mandamus to the respondents No. 1,2 and 3 namely State of U.P.; Commission and Director of Education (Higher) to consider and finalise the regularisation of respondent on the post of Lecturer in Physics in the College in question in accordance with the government order dated 26th May, 1997 read with government order dated 3rd of March, 1992 and not to interfere in the working and functioning of the respondent on the said post.
7. Shri Shailendra, the learned counsel for the petitioner, strenuously contended that the petitioner is entitled to get the placement order as per his first choice which is for the College in question. It was submitted that the order of placement of successful candidates has to be issued in order of the merit. The petitioner in the combined select list having been placed at higher merit than the respondent, the petitioner is entitled to be placed on the post of Lecturer (Physics) in the College in question. Reliance has been placed by him on a Division Bench judgment of this Court delivered in the Writ Petition No. 39758 of 2001 Km. Alka Rani Gupta v. Director of Education (Higher) on 27th February. 2003. He further submitted that the vacancy on the post of Lecturer (Physics) of the College in question having been advertised by the Commission as intimated by the College in question it is no longer open to anybody including the respondent to dispute existence of vacancy on the post of Lecturer (Physics). It was further submitted that in any view of the matter the respondent is not entitled for regularisation on the aforesaid post in view of Section 31-C of the U.P. Higher Education Service Commission Act.
8. In contra, Shri Ashok Khare, the Senior Advocate appearing for the respondent, submitted that the respondent having been worked in the said College for the last so many years, may be as ad hoc lecturer or as part time lecturer and the question of his regularisation being pending consideration before the authorities concerned, it would not be desirable to disturb the respondent by offering him a placement order in a different College beyond his first choice. It was submitted that first of all the question of regularisation of the respondent should be considered and if ultimately it is found that the respondent is entitled for his regularisation, the question of placement of both the petitioner and the respondent would automatically disappear from the scene. It was also urged that the aforesaid Division Bench judgment relied upon by the learned counsel for the petitioner does not lay down law correctly. The placement order has to be issued by applying 100 point roaster and if it is so adopted, the respondent being at the top of the O.B.C. category would become entitled to be placed as per his first choice, i.e. the College in question.
9. We have given careful consideration to the respective submissions of the counsel for the parties. Just to summarise the matter we are of the opinion that the following three questions fall for determination in these writ petitions :-
1. Whether, after his selection to the post of Lecturer in Physics by the Commission, the respondent is entitled to raise objection to the intimation of the vacancy to the Commission by the College in question that there was no vacancy in the College in question because of pendency of his regularsation matter?
2. Whether the respondent can set up a case of his regularisation of services on the post advertised by the Commission in advertisement No. 32 of 2002 in the College in question?
3. Whether 100 point roaster is to be taken into account by the Director of Education (Higher) while issuing the placement order? "
10. Reverting to the undisputed facts of the case it is clear that the College sent the requisition as required under the Commission Act informing the Commission with regard to the vacancy on the post of Lecturer in the College in question. The Commission accordingly notified the vacancy. At that point of time the respondent did not raise any objection against the notification of vacancy of the Post of Lecturer in College in question by the Commission. On the contrary, the respondent applied for his selection on the aforesaid post by applying in response to the advertisement , thus, made by the Commission and named the College in question as his first choice of placement in his application form. It is also not in dispute that the respondent is one of the successful candidates.
11. The insistence of the respondent to be placed in the College in question on the basis of his earlier services rendered by him, if any, on the post of ad hoc Lecturer in the College in question, which is hotly disputed by the petitioner, shows that he is indirectly challenging the requisition of vacancy sent by the College in question to the Commission. To our mind this is not at all permissible. The very fact that the College in question notified the vacancy of Lecturer in Physics to the Commission itself shows that there was a clear vacancy on the said post. The respondent should have raised his grievance, if any, at that relevant point of time when the vacancy was notified by the College in question or immediately after the advertisement No. 32 of 2002, The conduct of the respondent in not disputing the existence of vacancy at that very time when it was notified by the College and being one of the applicants before the Commission for selection and appointment, is now stopped to raise the question of existence of vacancy on the post of Lecturer in Physics in the College in question. This disposes of the first point of determination involved in the matter before us.
12. The learned counsel for the petitioner strenuously contended that the claim of the respondent for regularisation on the post of Lecturer in any view of the matter is not tenable under Section 31C of the Act. He submitted that in the year 1991 there was no such post in existence on which the respondent could have been appointed. The question of regularisation of a person on a post would arise only when it exists. If the post itself was not existing there, the question of regularisation does not arise. Reference was made by him to the appointment letter dated 1st of August, 1991. The respondent has set up the claim of regularisation on the basis of said appointment letter . It has been contended by the petitioner that there is no appointment letter on record showing the appointment of the respondent during the period 1994 to 2002. In reply, the respondent, however, submitted that initially appointment was made on honorarium basis vide appointment letter dated 1st of August, 1991 and the subsequent appointments were made vide appointment letters dated 22nd July, 1992 and 14th November, 1993 and 29th October, 2004. The respondent himself in para 11 of the supplementary affidavit to the writ petition has admitted that "the petitioner was not issued any appointment order and allowed to join the duties in the years 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002 and continued to work and function till the closure of the College in question for summer vacation, which would be evident from the joining letter vide annexures - 6,7,8, 9, 10, 11, 12 and 13 to this affidavit". It was also contended by the petitioner that besides there being no post on which the respondent could have been allowed to function as a lecturer, the various appointment letters relied upon by him do show only this much that the respondent was permitted to work on honorarium basis as a part time teacher on contract basis without there being any statutory sanction. Appointment letters were not issued to the respondent under any statutory provision or rule but the appointment letters were in the nature of contract to work, without there being any statutory sanction. These appointment letters are liable to be ignored and by no stretch of imagination they can confer any entitlement on the respondent to claim regularisation under Section 31C of the Act.
13. Long drawn arguments were addressed by the counsel for both the parties on the above issue. The learned counsel for the respondent submitted that the matter of regularisation of the respondent's service is still under consideration before the concerned authorities although we have our own doubt about the pendency of any such matter. Unfortunately neither the College in question nor the Commission or Director of Education (Higher) who are parties to the present litigations have come out by way of filing affidavits. But we decide the aforesaid question for the effective disposal of the writ petitions. We are also of the view that both the writ petitions can be conveniently decided and disposed of, on the undisputed facts.
14. It is not in dispute that there are 10 sanctioned posts of Lecturer in Physics in the College in question. It is also not in dispute that one Shri Shitla Prasad who was working as a Lecturer expired as far as back on 19th of October, 1974 and the College in question did not take any steps to fill up the said post. The post which fell vacant on account of death of Shri Shitla Prasad became dead post and was revived only in 1997 when the Director of Education (Higher) granted the permission. The post, thus, fell vacant on the death of Shri Shitla Prasad could be revived in the year 1997 and was filled up by a candidate namely Shri Prabhakar Singh selected by Commission who joined on 7th December, 1997. The above fact is also admitted to the respondent. In para 14 of counter affidavit filed in the writ petition No. 43975 of 2005: Dayanand Prasad Saha v. State of U.P., the petitioner (Devendra Kumar Singh) has given the details of the following 9 posts held by the respective teachers:-
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15. The further averment is that only one post (the post in question) remained vacant which was also advertised by the advertisement No. 32 of 2002. A bare perusal of the above list which is not in dispute clearly spells out that 6 posts were occupied before 1991. On the 7th post Shri Prabhakar Singh was appointed on 1st of October, 1997 which fell vacant due to the death of Shri Shitla Prasad who expired on 19th November, 1974. During the intervening period the said post was treated as dead post and was revived Only after the permission granted by the Direction of Education (Higher) in the year 1997. Dr. Shashi Kant Dwivedi at serial No. 8 was appointed on 27th of January, 2001 on account of resignation of Dr. Chhedi Lal on 1st of July, 1999. Shri Rakesh Kumar, at serial No. 9, was appointed on 1st of September, 2003.
16. It is admitted to the petitioner and the respondent that two teachers namely Dr. Shakal Narain Ram and Dr. Surendra Singh expired on 5.9.2000 and 14.5.2001 respectively. The vacancy was notified by the College to the Commission on account of their deaths. It is also not in dispute that the Commission appointed Shri Rakesh Kumar who joined on 1st of September, 2003 on one of the posts fallen vacant on account of aforesaid death. The only dispute in between the petitioner and the respondent is whether Rakesh Kumar was appointed on the post which fell vacant on account of death of Shri Shakal Narain Ram or on the post of Dr. Surendra Singh. The petitioner has submitted that the post fallen vacant due to the death of Dr. Surendra Singh was filled up by Rakesh Kumar. The respondent has submitted that Shri Rakesh Kumar has filled up the post which fell vacant due to the death of Dr. Shakal Narain Ram. Therefore there is no difficulty in holding that two posts which fell vacant out of total 10 posts of Lecturers in Physics in the year 2000-2001 due to the death of Shri Shakal Narain Ram and Shri Surendra Singh and out of them one post has been filled up by the appointment of Shri Rakesh Kumar Thus, it is clear that out of 10 posts there is only one post vacant, may be due to death of Shri Shakal Narain Ram or due to death of Dr. Surendra Singh. There is no issue in between the parties regarding the vacancy caused due to the deaths of these two persons and filling up of one post by Shri Rakesh Kumar. In this state of affair the College in question sent requisition to the Commission for selection of qualified candidate against the clear permanent vacancy, against which both the petitioner and respondent submitted their application forms for selection and appointment. The thing boils down to this that the requisition for the post sent by the College in question to the Commission and inclusion of the said post by the Commission in the advertisement No. 32 of 2002 was in respect of a clear permanent vacant post. Meaning thereby the question of regularisation of respondent, even if it is there, is totally foreign to the post in question that has been advertised by the Commission. We have come to the above conclusion on the basis of undisputed pleadings of the parties. In this fact situation the claim of the respondent of regularisation on a post covered by the advertisement No. 32 of 2002 sans merit.
17. Needless to say that a person can claim regularisation on an existing post. Any appointment made in the absence of a post is void. The facts as have been unfolded in the pleadings of the parties clearly demonstrate that the appointment of the respondent, if any, on which he is claiming regularisation was on a nonexistent post or on other ten sanctioned posts. The averments made in paragraphs 6,7,8,9 and 10 of the counter affidavit of petitioner in the writ petition No. 43975 of 2005 could not be disputed by the respondent (Shri Dayanand Prasad Saha in the rejoinder affidavit) do clearly show that there was no vacant post in year 1991 and the vacancies which arose subsequently either due to death or resignation were filled up by Commission's selected candidate namely Shri Prabhakar Singh, Dr. Shashi Kant Dwivedi and Shri Rakesh Kumar respectively.
18. A serious dispute was also raised that the respondent did not possess the requisite qualification in the year 1991 when he was allegedly appointed. Reference has been made to his 'bio-data filed as annexure -2 to the writ petition No. 43925 of 2005. It was contended that the respondent got his PhD degree in the year 1999 and could not succeed the National Eligibility Test till date. On the other hand the petitioner is fully qualified as he qualified N.E.T. in 1997 and obtained Ph.D degree in 2005. The said contention was made to give strength to the argument that on 1st of August, 1991 the respondent could not possibly be appointed as a teacher. We have noticed this argument just to complete the record and do not consider it necessary to express our view thereon.
19. Thus either there should be a decision first on the question of his regularisation or that a direction commanding the Deputy Director of Education (Higher) not to make placement of any selected candidate on the post of Lecturer in Physics in the College is devoid of any substance. We find no merit in the argument of the respondent that there should not be any interference in the working and functioning of the respondent on the post of Lecturer.
20. Now we take up the last point urged by the counsel for the parties with regard to the implementation of reservation policy after the completion of the selection process and at the time of issuance of the placement order, directing the selected candidate to join a particular College, as notified in the advertisement. It is not in dispute that the petitioner and respondent gave their first choice for the College in question while submitting their, application forms. After selection process, a combined select list has been prepared by the Commission. The petitioner is at serial No. 15 of the list of general category candidates. The respondent is at serial No. 25 of the select list but is at the top of the candidates belonging to the category of Other Bacakward Classes. The learned counsel for the respondent submitted that the policy of reservation as laid down by the State Government by means of the notification dated 25th of June, 2002 should be adopted and the placement order should be issued to the respective selected candidate as per 100 point of roaster. In reply to which, the petitioner's counsel has placed reliance upon an unreported Division Bench judgment of this Court delivered in the case of Writ Petition No. 39758 of 2001 Km. Alka Rani Gupta v. Director of Education (Higher) decided on 27th of February, 2003. One of us (Hon. Prakash Krishna, J) is a party to the aforesaid judgment. This Court has considered Section 13 of the Act which reads as follows:-
"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 names shall be arranged in order of merit shown in the interview, or in the examination and interview if an examination is held.
(2) The list 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 subsection (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 preceding provisions, whereto abolition of any post of teacher in any college, services of the person substantively appointed to such post is terminated the State Government may make suitable order for his appointment in 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 sub section (3) or sub-section (4) or sub-section (5) to the candidate concerned. "
21. Regulation 5 of the U.P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulations, 1983 states as follows:-
"5. Notification of vacancies, submission of application and indication of preference. The Commission shall advertise the vacancies in the three issues of at least three newspapers. The Commission shall send a copy of the advertisement to the Director and may, if it considers proper, also send a copy thereof to the District Inspector of Schools and to the Colleges. Such advertisement shall, inter alia, indicate the total number of vacancies as also the number of vacancies in women's colleges and other colleges separately, the names of the college(s) and where they are situate and shall require the candidates to apply in prescribed form and to give if he so desires, the choice of not more than five colleges in order of preference. Where a candidate wishes to be considered for a particular college or colleges only, and for no other, he shall mention the fact in his application;
Provided that where the number of colleges is large or for any other reason the Commission considers it inexpedient, it may, instead of mentioning the names and particulars of the colleges in the advertisement, send the copy thereof to the colleges and to the District Inspector of Schools and mention in the advertisement that particulars of the colleges may be seen in the office of the Commission, the office of District Inspector of Schools or in the Colleges:
Provided also that the Commission shall not be bound by the choice given by the candidate and may, in its discretion, recommend him for appointment in a college other than indicated by him. "
Regulation 7 (3) states as follows:
"(3) The posts of the Principal of degree colleges in the higher grade shall be offered in order of merit with due regard to the preference given by the candidates and the posts in the lower grade shall similarly be offered to the candidates standing next in order of merit."
(4) The procedure mentioned in sub regulations (2) and (3) shall, mutates mutandis, be followed in respect of the posts of teachers other than principal. "
22. Interpreting sub clause (3) of section 13 of the Act it has been held in the case of Km. Alka Rani (Supra) that only the logical and reasonable method for making placement of a candidate selected by the Commission is to give due regard to the order of preference indicated by the candidates. Under Regulation 7(3) of the Act, the placement is to be done in order of merit with due regard to the preference given by the candidates. Meaning thereby, this Court has held that the selected candidate higher in merit should be accommodated first by issuing placement order as per his choice. The selected candidate lower in merit has to yield the choice of the selected candidate higher in merit. It has been further held that " a candidate selected against a reserve category cannot thereafter claim benefit of reservation also in the matter of placement."
23. To the above, the learned counsel for the respondent submitted that law laid down by the Court requires reconsideration. Elaborating the argument it was submitted that 100 point roaster should also be followed at the time of issuing the placement order. We have given careful consideration to the aforesaid submission but find no merit therein in view of the procedure of selection as laid down in the Act. Under the Act the respective Colleges are required to notify the vacancy to the Commission from time to time. The Commission after receiving the intimation of vacancies in a particular subject from Colleges adds them and works out the number of vacant posts subjectwise throughout the whole State. Thereafter out of the total number of posts it works out the posts meant for general category candidates; reserve category candidates namely Other Backward Classes, Scheduled Castes, Scheduled Tribes etc. A copy of the advertisement in question namely advertisement No. 32 issued by the Commission has been annexed as annexure 2 to the writ petition No. 41083 of 2005. A bare perusal of the said notification would show that the Commission advertised the post in respect of 43 subjects. The total number of posts of Lecturer in Physics subject in various Colleges is 48. Out of forty eight posts, 24 were for general category candidates, 14 were reserved for O.B.C. and 10 for Scheduled Caste candidates. The candidates of reserved category who could compete into general category candidates were selected in the general category candidates. For example, Dr. Smt. Kamna Yadav, Dr. Ramesh Kumar Yadav and Shri Ram Manohar Yadav belonging to O.B.C. category candidates could compete .with general category candidates and their names find place at the serial Nos. 8,20 and 23 of the select list meant for general category candidates. The reservation policy is applicable up to the stage of selection process and not thereafter. No person can claim preferential treatment on the basis of reservation at the time of issuance of the placement order. Had it been not so it would amount to giving double benefit to the reserved category candidates. There cannot be process or double reservations i.e. one for selection and another for placement. Putting name of the respondent against serial No. 25 under the sub heading 'other backward classes' cannot give any extra benefit. These are only identification marks - nothing can be construed as regards placement. The learned counsel for the respondent could not show us any Government Order, Act or Rule in support of his aforesaid submission that reservation policy is also attracted at the time of placement.
24. At the initial stage of recruitment reservation can be made in favour of backward class of citizens, but once the selection process is over no further distinction can be made thereafter with reference to their "birth mark" (the expression used in para 107 of Indra Sawahai's case, , by the Apex Court, in a slightly different context)
25. The above view also finds support from the form Ga as prescribed under the Act for sending intimation of vacancy by the Colleges to the Commission. The said form is popularly known as requisition form. In the said prescribed form 'Ga1 a copy of which has also been enclosed as Annexure -22 to the supplementary affidavit filed by the respondent in his writ petition, there is no column requiring a College to intimate the vacancies indicating whether they are open to the general category candidates or for the reserved category candidates. Form "GA" counters the argument of respondent's counsel. The argument, that the respondent belongs to OBC category candidate and the post which was notified by the College was also with respect to the post belonging to the OBC category candidates is, thus, liable to be rejected. We hold that the post in question which was advertised by the Commission on the requisition sent by the College was a clear permanent vacant post open to the general category candidates as well, to which the respondent has no claim for regularization. We also reject the argument of the respondent that the policy of reservation is also available after completion of the selection process and at the time of issuing the placement order.
26. Moreover, it is not open for us to disagree with the view of the Learned Judges expressed in the case of Km. Alka Rani (Supra) on the ground that a possible aspect of the matter was not considered or not raised before the Court or more aspects should have been gone into by the Court deciding the matter earlier, as held by the Supreme Court in the case of State of Bihar v. Kalika Kuer @, Kalika Singh, .
27. Thus, we find merit in the writ petition No. 41083 of 2005 filed by Devendra Kumar Singh - petitioner which is hereby allowed. A writ in the nature of Certiorari is issued and the impugned placement order dated 9th June, 2005, annexure -7 to the writ petition No. 41083 of 2005 is quashed and the respondent No. 2 is commanded to issue a placement order permitting the petitioner, Devendra Kumar Singh, to join in Udai Pratap Autonomous College, Varanasi which is his first choice preferably within a period of one week from today. The Director of Education (Higher) is further directed to issue a placement order plaeing Dayanand Prasad Sana, respondent, in a College other than the College in question.
28. In the result the writ petition No. 43975 of 2005 subject to above is hereby dismissed. The writ petition No. 41083 of 2005 is allowed. The parties are directed to bear their own costs.