JUDGMENT V.M. Sahai and B.A. Zaidi, JJ.
1. The petitioners and the respondent No. 6, in this writ petition before us are the two contenders here claiming their Hen and right which we will narrate below, on the post of Lecturer in Hindi in U.P. College, Varanasi. It is respondent No. 6, at present, who is functioning on the said post, for last two years.
2. It so happened that one Dr. Tushar Kanti Singh, was functioning against the aforesaid post in said college and in the event of his death said post became vacant. The averment of the petitioner in this behalf is that it was one Dr. Ram Bachan Singh, who was functioning against this post, which fell vacant on 30.6.1998, in the event of his retirement. Whatever it may be, the fact remains the vacancy of Lecturer in Hindi in the said college occurred and an advertisement to fill up the said vacancy was made by U.P. Higher Education Services Commission vide Advertisement No. 32 (Annexure-3 to the writ petition) on April 2, 2001. This is a fact which is not disputed here.
3. The fact remains that the petitioner was one of those, who applied. While the respondent No. 6 had not applied pursuant to the said advertisement, for the said post and after selection U.P. Higher Education Services Commission declared the petitioner as a successful candidate. It should be noted that while applying for the post of Lecturer, the petitioner, in order of preference, as permitted and required under Section 12(4) of U.P. Higher Education Services Commission Act, 1980, had given the aforesaid college as his preference No. 2, but the respondent director did not post the petitioner in U.P. College, Varanasi, but posted him in Kamla Nehru Post Graduate College, Rae Bareilly a posting for which he had not at all applied in his application form. Since the petitioner was not given placement in U.P. College, Varanasi or for any other college for which he had applied, he refused to join in Kamla Nehru Post Graduate College, Rae Bareilly pursuant to order of his appointment dated 20.9.2004 issued by respondent No. 5 (Annexure-6 to the petition) and challenged his posting of Rae Bareilly by filing the present writ petition praying that the respondent No. 1 be directed to post him in U.P. College, Varanasi, which was his preference No. 2 in his application form, and on which respondent No. 6 was illegally posted by respondent-Director. Since, the petitioner had not joined in pursuance of his appointment and posting vide order dated 3.8.2005 (Annexure-1 to the amendment application), during the pendency of the writ petition the petitioner was given the go-bye by the management of Kamla Nehru Post Graduate College, Rae Bareilly respondent No. 5, vide order dated 3.8.2005. Consequently the petitioner amended the petition by adding the relief that the said order also be set aside.
4. We have heard learned Counsel for the parties.
5. The respective contentions of the rival parties are being taken and considered apart in separate paragraphs hereunder in the facts and circumstances already narrated above, on which our conclusion are as below.
6. The contention of learned Counsel for respondent No. 6 is that respondent No. 6 is functioning on the aforesaid post as a regularly selected candidate in pursuance of an Advertisement, No. 29 by the U.P. Higher Education Services Commission and that she was given posting in U.P. College, Varanasi by the Director of Higher Education, the respondent No. 2, vide order dated 16.9.2003 (Annexure-C.A. 3 to the counter-affidavit of respondent No. 6) exercising his powers under Section 13(3) of the Act and she has also been confirmed on the said post on 26.9.2004 and her appointment and posting, therefore, valid, cannot be legally disturbed in any way.
7. It is difficult to agree with this contention of the learned Counsel. Section 12 of the U.P. Higher Education Services Commission Act, 1980 is a complete answer to the controversy and which lays the entire mechanism how and in what manner a vacant post of a lecturer governed under the said Act will be filled and who can be placed or posted on that post after his selection. Section 12 is herein under:
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 as commencing on July 1.
(3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subjectwise 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 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.
As will, therefore, appear from the provision given in Sub-section (4) of Section 12 of the Act and in Section 12 as a whole, that a candidate who seeks appointment for a notified post, under an advertisement, must apply for that post and should indicate his order of preference for various college vacancies. This is for the simple reason that after his selection, he is placed in order of preference given by him. By enacting this provision the legislation appears to have removed any anomaly which may probably arise for the posting of selected candidates while giving appointment. It is not disputed that respondent No. 6 was never a candidate for the post of Lecturer in Hindi in U.P. College, Varanasi, in pursuance of Advertisement No. 32 made by U.P. Higher Education Services Commission and, therefore, she could not at all be considered, for the said post for placement and posting, and that too in the face of the fact, that the petitioner was a selected candidate under the aforesaid advertisement, and was available with the Director to be posted against that post. According to respondent No. 6 herself she had applied pursuant to Advertisement No. 29 which was not here, to fill up, the vacancy of Lecturer in Hindi in U. P, College, Varanasi. It can, therefore, safely be said that the placement or posting of respondent No. 6 as Lecturer in Hindi in U.P. College, Varanasi, being in contravention of above provisions of Section 12, is per se illegal and void, and her claim against the same raises on the ground she cannot thus be allowed to be continued as such, despite the fact that Management of the College has confirmed her.
8. Now turning to the contention of the petitioner with regard to his claim against the said post and that his services have been illegally come to an end, enough to state that it was he who had applied for the aforesaid post in wake of advertisement No. 32 and was declared a selected candidate for it. In his application form, he had indicated the aforesaid post and college his preference No. 2, as contemplated in Second Proviso of Sub-clause (4) of Section 12 of the Act. He was, therefore, within his legal right to claim his placement against the said post, in the event he was not given placement against any other place, of his preference. The other way round, the respondent-Director while giving him appointment, gave him placement in Kamla Nehru Post Graduate College, Rae Bareilly, a vacancy for which he had not at all offered himself, in his application form. We, therefore, fail to comprehend, how the petitioner in the circumstances could be by-passed for his posting and placement in U.P. College, Varanasi, and respondent No. 6 could be posted there by the respondent-Director, in garb of powers under Section 13(3) of the 'Act'. This act of (the then) Director without caring for the legal and valid claim of the petitioner and posting respondent No. 6 against the aforesaid post is thus, clearly arbitrary and illegal and saying by respondent No. 5 to the petitioner a go-bye because the petitioner had not joined at Rae Bareilly pursuant to order, Annexure-1, is all the more reprehensible which deserves severe condemnation.
9. With the result, this writ petition succeeds and is allowed. The cancellation of appointment of the petitioner dated 3.8.2005 (Annexure-1 to the Amendment Application) is set aside and quashed. A writ of mandamus is issued directing the respondent-Director to issue a fresh posting (placement) order in favour of the petitioner, in order of his preference, given in the application form, taking into account that if posting and place of preference given in his application form is not available, the petitioner be posted in U.P. College, Varanasi, as Lecturer, Hindi within three months of this order. We make it clear that by ordering that petitioner be posted in order of precedence of places, we are not at all endorsing the posting of respondent No. 6 Km. Vibha Kumari in the said college of Varanasi to be continued as her posting and placement there is illegal and void. Respondent No. 6 has to be removed from the post of Lecturer, Hindi, U.P. College, Varanasi, where she is presently functioning in terms of order by the Director. But since the respondent No. 6 is a regularly selected candidate under Advertisement No. 29, the Director may think to post and place her anywhere else in accordance with the Rules and Regulations prescribed in this behalf if any vacancy of Lecturer, Hindi in pursuance of Advertisement No. 29 is available.
10. Costs made easy.