JUDGMENT A.K. Yog, J.
1. Km. Nisha Srivastava, the petitioner before us, has filed this writ petition under Article 226, Constitution of India mainly with the prayer:
(i) to issue a writ of certiorari to quash impugned order dated 2-2-1995/Annexure-11 to the writ petition;
(ii) to issue a writ restraining Dr. (Smt.)Padmaja Singh/respondent No. 5 from working on the post of Lecturer, Music (Vocal) earlier held by one Madhuri Saxena- called 'post in question' in Chaudhary Mahadeo Prasad Degree College, Allahabad; called 'CMP College'; and
(iii) to issue a writ of certiorari to quash letter of appointment dated 9-2-1995/Annexure-ll to W.P. issued on behalf of.Respondent No. 2/Committee of Management, CMP College, Allahabad ( for short 'COM') in pursuance to the order of placement dated 2-2-1995 (Annexure-CA2 to the counter affidavit of respondent No. 2(C.O.M.) issued by Director of Education (Higher Education), U.P., Allahabad, for brief'Director'/Respondent No. 3.
2. Admitted facts of the case are summarized hereunder.
4. Learned counsel representing U.P. Higher Education Services Commission/Respondent No. 4 (for brevity 'the Commission') stated that the Commission shall not file counter affidavit and instead place original record of the case before the Court; (vide order dated 7-7-2005 on the order sheet of the case).
5. Initially no counter-affidavit was filed by the Director. On 7-7-2005, Court directed him to hear the concerned parties, consider the matter again and pass a speaking order on the issue 'whether Respondent No. 5 was validly placed in CMP College, under the provisions of the Commission Act, as interpreted and explained by Apex Court in the case of Kamlesh Kumar Sharma (Infra); and if not, whether she could be adjusted/accommodated in CMP College or elsewhere?' The Director, thus passed order dated 13-7-2005; enclosed as Annex. CA-1 to the counter affidavit of Respondent Nos. 3 (sworn on 16-7-2005) and held:
(i) Padmaja Singh was validly selected following relevant provisions of the Commission Act as understood and followed during relevant time,
(ii) Placement of Padmaja Singh in CMP College was without exception and similar criterion/procedure was adopted in other large number of similar cases under relevant provisions of the Commission Act as understood prior to Apex Court judgment in the case of Kamlesh Kumar Sharma (Infra).
(iii) After Apex Court judgment in the case of Kamlesh Kumar Sharma (Infra), placement/appointment has been done strictly in accordance with the provisions of the Commission Act (as explained and declared by the Court in the said judgment).
6. Perusal of the pleadings and the documents of the parties in the present writ petition and the earlier writ petition No. 1131 of 1993 (Km. Nisha Srivastava v. Committee of Management, CMP Degree College, Allahabad and Ors. (listed along with this Writ Petition and decided today itself) show:
(i) Petitioner was engaged in CMP College as 'part time' teacher on 'fixed' emolument by way of stop gap arrangement (writ para 8 & 9); held no sanctioned 'post' as such and worked from 7-1-1993 to 15-7-1998 under interim order passed by this Court in Writ Petition No. 1131 of 1993 (writ para 10 to 13); (ii) Petitioner, Nisha Srivastava, was never appointed in any capacity on the 'post in question';
(iii) Padmaja Singh was appointed and placed by the Director against the 'post in question' on request made by CMP College, vide letters dated 2-9-1994 and 26-11-1994, to ensure that students do not suffer in academic session 1994-95 (Annexure-CA3 to the counter affidavit and Annexure-1 to the writ petition respectively);
(iv) The petitioner, admits that she applied against post of Lecturer, Music (Vocal) subsequently shown in Advertisement No. 19 (which later merged into Advertisement No. 20) but she was not called for interview (para 29 of the writ petition);
(v) Padmaja Singh, acquired 'Ph.D' Degree in 1992 before the Commission called her for selection/interview in the year 1994.
(vi) It is conceded by the learned counsel for the petitioner that there is no claim of regularization (by virtue of her working as part time teacher) on, the post in question.
7. Aforesaid facts find mention in paras-6 to 9 of the supplementary counter affidavit (sworn on 2-9-1998 by Padmaja Singh) which are reproduced:
"6. That the contesting respondent had applied against an advertisement No. 19 of 1989 where 5 vacancies of Music (Vocal) were shown that some how no selection for Music (Vocal) taken place till March, 1994.
1. That meanwhile some vacancies also were brought to the notice of the Commission and thus in 1993 through advertisement No. 19 of 1993, 2 vacancies for music (vocal) were shown.
2. That the petitioner herself applied inl993 and thus an application for Music (Vocal) were considered by the Selection Committee and interview letter to be sent to the deserving candidate.
3. That the petitioner was not found fit for being called even for interview and thus there was no question of her selection the contesting respondent on the other hand was selected and the Commission sent the list of Selection Committee, the Director who adjusted the contesting respondent at CM.P. Degree College on her request."
8. In reply to above paras of the Supplementary counter affidavit, Para 7 to 10 of the supplementary rejoinder affidavit (sworn by Nisha Srivastava on 12-8-1999)read:
"7. That the contents of paragraph No. 6 of the supplementary counter affidavit requires no comments. However, the year mentioned in para under reply is incorrect. There was no advertisement No. 19 in the year 1989. As a matter of fAct in 1989 the advertisement number 14 in which no post of C.M.P. Degree College, Allahabad in music subject. Even upto the March 1994 the post was never intimated to Director of Higher Education. The respondent No. 5 failed to provide any evidence showing that post of C.M.P. Degree College, Allahabad, in subject Music (Vocal) was advertised in the advertisement No. 14.
8. That the contents of paragraph No. 7 of the supplementary counter affidavit requires no comments being matter of record. However, it is again necessary to mention here that advertisement No. 19 was published in 1993 and the post of C.M.P. Degree College, Allahabad was never advertised. By perusal of the instructions sent by the Commission along with advertisement No. 19 of 1993 dated 9-2-1993 post of Music, it can be verified that at serial No. 55, 56, 57, 58, 59 and 60 posts in subject Music was shown. However, there was no mention in subject Music in CM.P. Degree College, Allahabad. The respondent No. 5 is unnecessary trying to mislead the Hon 'ble Court. Therefore, it is clear that the post of CM.P. Degree College was never advertised in advertisement No. 19 of 1989.
9. That the contents of para No. 8 of supplementary counter affidavit have nothing to do with the present dispute. Petitioner's claim is that against the post in subject Music (Vocal) occurred in 1991 and intimation sent on 26-11-1994 and for each and every post petitioner has got right to apply and right of consideration. It is further necessary to mention here that subsequent to 1993 there is a vast change in qualification and experience. At present petitioner already qualified National Eligibility Test and she has also been awarded D.Phil. Copy of the certificates confirming the fAct is being filed herewith and marked as Annexure No. SRA-1 and SRA-2 to this supplementary rejoinder affidavit. In view of this fAct whenever the post will be advertised petitioner will have to face the interview board with better qualification and experience. On account of her working as temporary teacher in C.M.P. Degree College, Allahabad, she also have a claim for better experience than what she was keeping in the year 1993. That the contents of paragraph No. 9 of the supplementary counter affidavit are denied. It is an admitted fAct that the respondent No. 5 selected against the advertisement No. 14 of 1989 where no post of subject Music in CMP Degree College, Allahabad was advertised and even that moment even no vacancy in subject Music was in existence. Petitioner hope and trust whenever the post will be advertised she will put her claim in better position as at present she is not only D.Phil, but she has already qualified National Eligibility Test. So far the respondent No. 5 is concerned she has admitted in para under reply that the Director of Higher Education adjusted her in CMP Degree College, Allahabad on her request. Therefore, Act of appointment of the respondent No. 5 is apparently illegal and deserves to be set aside in view of the decision of this Hon 'ble Court already referred in the preceding paragraphs. She has no right and claim against the petitioner she is illegally given appointment. "
9. Heard counsels for the parties.
10. Controversy, in the instant case, centers round the question of validity of appointment of Respondent No. 5 on the 'post in question' in CMP College affiliated to 'University of Allahabad'.
11. Learned counsel for the petitioner, in the first place argued that there was no 'vacant post' available against which the Commission and the Director could select/appoint Respondent No. 5. It is submitted that out of 8 posts mentioned in Advertisement No. 1A of 1989, by the time Director could issue 'placement orders', only two vacant posts were available to be filled up. As per her merit she was not placed at number 1 or 2 which were given to candidate at SI. No. 1 and 2 on merit list. Respondent No. 5 was selected below Sl. No. 2 in Select List and placed against Dehradun College but could not join since the said 'vacancy' meanwhile ceased to exist; presumably because by that time the 'ad hoc appointee' (working on the said post) stood regularized under law. The argument is that when no post was 'vacant' at Dehradun College, question of selection against said post did not arise at all.
12. The above argument has no force since it overlooks the fAct Respondent No. 5 had bonafide applied against Advertisement No. 14/1989, selected by the Commission on merit from amongst the candidates called for interview against vacant posts (including the post at Dehradun College) mentioned in the Advertisement and placed in the 'Select List' after following the procedure prescribed in law and, therefore, theory of 'def Acto selection' shall apply.
13. In the second place, on behalf of the petitioner, an attempt is made to argue that the qualifications mentioned in Advertisement No. 14/1989 were not as per 'minimum qualification' prescribed in law i.e. the '1st Statutes' applicable to the instant case. No such ground is taken/pleaded in the writ petition and, therefore, not available to the petitioner.
14. Otherwise also aforesaid argument has no merit.
15. In the case of Vinay Ram Pal v. The State of Jammu & Kashmir and Ors., 1984 UPLBEC 137, there was contradiction in the minimum qualifications set out in the advertisement and the Government order dated 23-3-1979 the candidate was eligible for admission in view of qualifications set out in the Advertisement and on that basis admission granted, there was no reference to the said Government order in the Advertisement but still the Apex Court held that petitioner could not be denied admission on the basis of the said G.O. since eligibility have to be computed on the basis of qualifications set out in the said Advertisement. Paragraph-4 of the judgment in the case of Vinay Pal (Supra) is reproduced-
"4. If the petitioner's eligibility for admission to the course for which he had applied is to be judged on the qualifications as set out in the advertisement it is indisputable that he was eligible for admission under Clause (b) (iv) of the advertisement, Mr. Altaf Ahmed, however, drew our attention to item No. 12 in Notification No. 4 of 1981 issued by the Government Medical College at Jammu which recited that the selection of the candidates will be made strictly in accordance with the instructions issued by the Government. That may be so. But can it be urged that advertisement was issued ignoring Government instruction if any, relevant to the subject. In any event such a vague direction that the selection of candidates will be made strictly in accordance with the instructions issued by the Government, in the face of advertisement leave us cold because any such instruction must be in conformity with some rules and if there be rule the same must be in conformity with the Regulations framed by Indian Medical Council if its jurisdiction extends to Jammu and Kashmir. It was never suggested at any point of time that in issuing the advertisement there was any error. If that be so the College authority including Principal issuing advertisement and inviting applications for admission must be held bound by it unless shown otherwise. The petitioner was eligible for admission in the subject of General Medicines for M.D. degree in the year 1981 according to qualifications and other requirement set out in the advertisement. The sands of time have run not which is inevitable in judicial process. What relief can the Court grant to person unjustifiably refused admission. Post Graduate qualification in medical discipline is highly coveted. We must therefore find afresh answer. "
16. In the third place, it is submitted, that Respondent No. 5 did not possess Ph.D./M.Phil. Degree (as allegedly required under 1st Statutes of the University) when Advertisement No. 14/1989 was issued or on the last date prescribed for submitting application in pursuance to the said Advertisement. It may be mentioned that the petitioner herself did not possess Ph.D/M.Phil. Degree when Advertisement No. 14/1989 was issued or at any other relevant point of time. The said argument is, therefore, not available to the petitioner. Besides it, pleadings and grounds mentioned in the present writ petition show that the petitioner has not challenged selection/ placement of Padmaja Singh/Respondent No. 5 in CMP Degree College by the Commission on the above ground of 'qualifications' and, therefore, cannot be allowed to be urged for the first time in arguments.
17. In the fourth place, both-Respondent No. 5/Padmaja Singh and the petitioner/Nisha Srivastava- fulfilled 'minimum qualifications' as required in the said Advertisement No. 14 of 1989 and both were eligible to apply as per qualifications mentioned in Advertisement No. 14/1989. There is nothing on record to answer 'why Nisha Srivastava did not apply in response to the said Advertisement (particularly when she was eligible as per qualifications given)?
18. In the fifth place, the petitioner should have challenged Advertisement No. 14/1989 and the consequential selection process on the above ground at the earliest opportunity so that rights of the others ( including Respondent No. 5) were not jeopardized by surprise at a belated stage. Not having done so, the petitioner cannot be permitted to challenge 'selection' later after one year of appointment of Respondent No. 5 as it amounts to 'collateral challenge' which is not permissible in law.
19. Reference may be made to a few decisions on the point, e.g.-
1. In Gokaraju Rangaraju v. State ofAndhra Pradesh, AIR 1981 SC (Para-11), the Apex Court referring to Cooley's Constitution Limitations, Eighth Edition, Vol.11, page 1335 noted:
"...No one is under obligation to recognize or respect the acts of an intruder and for all legal purposes they are absolutely void. But for the sake of order and regularity and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de fActo are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by some one claiming the office de jure,... There is an important principle, which finds concise expression in the legal maxim that the acts of officers de fActo cannot be questioned collaterally...."
2. In Beopar Sahayak (P) Ltd. and Ors. v. Vishwa Nath and Ors., (para-12), the Apex Court observed:
"The ensuing position therefore is that even if we are to countenance the argument of the appellant's counsel that Shri Senger had not gained experience as an Executive Magistrate exercising First Class powers for a period of not less than three years and could not therefore be appointed as a Prescribed Authority under the Act, the validity and legality of the order of release passed by him cannot be impugned because Shri Senger had not held the office as a usurper but only under colour of lawful authority. There is, therefore, no escape for the appellant from being governed by the 'de fActo doctrine' and thereby being disentitled to impugn the validity of the release order on the ground of want of jurisdictional competence for Shri Senger to pass the order. Furthermore, the appellant is also not entitled to question the validity of the appointment of Shri Senger as a Prescribed Authority in a collateral proceeding. These additional fActors also militate against the contentions of the appellant. "
3. In Dr. Ku. Nilofar Insaf v. State ofMadhya Pradesh and Ors., AIR 1991, 1872 (para-16), Supreme Court opined:
"In the present case, there are valid considerations why Dr. Jain should not be allowed to challenge the merit list at this point of time. We have referred earlier to the plea of Dr. Jain that he has challenged the merit list of 1989 within the period of time mentioned in the rules. Technically, he is right, as we have already held. But if we look at the position more closely, we find that the precedence of the appellant over Dr. Jain crystallized as soon as the M.B.B.S.results were published....The merit list of 1989 is nothing but a reproduction of the merit list of 1988 confined to a narrower group of students of the same batch. The latter did show the appellant to have obtained more marks than Dr. Jain and, in this sense, was adverse to his interests. The omission of Dr. Jain to challenge the correctness of the list then lulled the appellant into a sense of security that the merit list was acceptable to all. We, therefore, think that Dr. jain should be barred, on equita "ble considerations, from challenging the order of merit at the present stage. "
4. In Dr. Asha Saxena v. Smt. S.K. Chaudhary and Ors., (1991) 2 UPLBEC 1202 (para-16) Full Bench of this Court observed:
"...It is true that there is power under Section 16-E(10) of the Act to cancel the appointments but that power has to be exercised within a reasonable time. The appointments had been made in the year 1973 and by no stretch of imagination it can be said that the exercise of that power after the lapse of 17 years by the Director of Education under Section 16-E(10), on the facts and circumstances of the case can be said to be exercise of a power within a reasonable time.... "
5. In the case of Dr. M.S. Mudhol and Anr. v. Shri S.D. Halegkar and Ors., Judgments Today 1993 (4) SC 143, Supreme Court finding that there was no attempt on the part of the candidate to project qualification incorrectly, held there was no justification, to interfere after nine years, with the said appointment. For convenience, paras-6 and 7 of the said judgment are quoted below-
"6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his slection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be iniquitous to make him suffer for the same now. Illegality, if any, was committed by the Selection committee and the 2nd respondent. They are alone to be blamed for the same.
7. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the Court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the Court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infrAction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present ca0se or not and further whether mere laches would disentitle the petitioners to such a writ. "
6. Again Apex Court in its judgment dated 2-5-1996 in the case of Smt. Santosh Yadav v. State of Haryana and Ors., rendered in Civil Appeal No. 7748 of 1996 held that when some persons were taken in service on the basis of diploma/certificate which was not recognized by State of Haryana, their terms were renewed from time to time without objection then their services could not be terminated after 8 years when she had attained regularity in service. Relevant para-6 of the said judgment in the case of Santosh Yadav (Supra), reported in 1996 (V) AD SC 191, is reproduced-
"6. It is not denied that the appellant was taken in service on the basis of the diploma/certificate she possessed, having obtained it from the Secondary Education Board, U.P., Bareilly and that her six months' term were kept renewed from time to time, ignoring small gaps in between, as was the pattern. Therefore, we fail to see that when she was acceptable in 1980 and her terms were kept renewed from time to time uptil 22-5-1982 and onwards, whereafter she was confirmed in the year 1984, how could her services be terminated in the year 1990, when she had attained regularity in service.... it was wholly wrong and arbitrary on the part of the Education Department and the School to have deprived her of her job. Thus, the impugned order dated 27-3-1990 (Annexure H) relieving the appellant from her duties as Hindi Teachress with immediate effect, is quashed, putting her back to position with back wages and regularity of service, including other service benefits such as seniority, promotion, increments etc. as would have normally been due to her. "
20. In the sixth place, Nisha Srivastava had opportunity to apply but she failed to seek regular appointment. This is too much to expect on the part of Nisha Srivastava to have waited throughout for all these years for the post in question being advertised and then taking a chance of being selected.
21. In the seventh place, in the present case, it is fairly conceded that Respondent No. 5 possessed all the minimum qualifications required in law as on date. In addition to it, rule of equity based on Legal maxim- "IN PERI DELICTO POTIOR EST CONDITIO POSSIDENTIS" contemplates that when both parties are equally at fault position of the defendant is better. On that principle we find that appointment of Respondent No. 5 should not be disturbed. Respondent No. 5 has already put in more than 10 years service. Normally, she must have been confirmed and to dis-lodge her at this stage will be to up-root/unsettle her in mid of her life and that too, for no fault of her.
22. In the eighth place, learned counsel for the petitioner argued that Padmaja Singh 'manipulated' her placement in collusion with the then authorities in the Directorate of Higher Education, at Allahabad. This contention has no force in absence of relevant pleadings and concerned officers/authorities have not been impleaded by name in personal capacity, plea of malafide/collusion without pleading necessary facts and that officers are not impleaded by name, such a plea cannot be entertained and deserves to be rejected forthwith.
23. The ninth and the last, but none the less the main ground of challenge to the appointment of Respondent No. 5 is based upon the decision of the Apex Court in the case of Kamlesh kumar Sharma v. Yogesh Kumar Gupta- (affirming this Court Division Bench judgment and order dated 19-6-1995 in Writ Petition No. 29192 of 1993- reported in (1995) 2 UPLBEC 1125) holding that a post, which is not advertised, cannot be filled up from Select List prepared under Section 13(2) of Commission Act.Para 14 and 17 of the judgment dated 9-2-1998 in the case of Kamlesh Kumar Sharma (supra) read:
"14. We find, after giving our careful consideration that in case the appellant's argument is accepted by giving wider interpretation to the word "otherwise ", it would thwart the very object of the Act. In other words it would permit the filling of the vacancy occurring which was never advertised and a person in the select list panel, even though not applying for any vacancy, would be absorbed. Hence would be limiting the sphere of selection in contradiction to 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.
17. 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 of such unforeseen circumstances. In other words, all the circumstances has to be within the vacancies already advertised and not beyond it. The sphere of Sub-section (4) of Section 13 is within the vacancies for which the Commission took interview or the examination, as the case may be, under Sub-section (1) of Section 13. Sub-section (2) which says that the list so prepared shall be valid till the receipt of a new list from the Commission only means that in case there is delay in the next new list and any vacancy occurs on account of the unforeseen reason within the vacancies advertised, the said vacancy can be filled up under Sub-section (4) of Section 13. The list would not came to an end after a period of one year, as was earlier and would continue for a limited purpose as explained above till the selection in the next academic year in question is made and recommendations are sent with afresh list. "
24. Relying upon the case of Kamlesh Kumar (Supra), petitioner filed first representation in December 1995, second representation on 20-7-1996 (Annexures 14 & 15 to W.P.) and then she filed present writ petition on 26-8-1996.
25. To appreciate the aforesaid argument, Sections 12, 13 and 14 of the Commission Act are quoted below :
"12. Procedure for appointment ofteachers-
a. 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.
b. 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.
c. 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.
d. 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 itunder 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 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 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 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 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.
14. Duty of Management-(l) The management shall within a period 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 the 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. "
26. Section 11 of the Commission Act places statutory obligation to select candidates. Likewise Section 12 of the Commission Act prescribes procedure for appointment of teachers on vacant posts intimated by Management of colleges to the Director in the manner prescribed who in turn, is supposed to notify the same to the Commission. Section 13(4) of the Commission Act further provides that Director shall intimate name/s of candidate/s to the Management of Colleges for appointment on vacancy which may arise due to death, resignation or otherwise during the validity of list referred in Section 13(2) of the said Act even though not notified to the Commission under Section 12(3) of the Act. The object of Section 13(4) of the Act apparently was to avoid delay in filling up regular vacancy to ensure that studies of the students are not hampered and also to ensure that ad hoc appointees were not unduly continued.
27. Respondent No. 5 was selected by the Commission on 23-03-1994. Director passed order of placement and directed Padmaja Singh to join at Dehradun College, later at Mirzapur and subsequently at CMP College, Allahabad on 9-2-1995 where she joined same day. High Court Division Bench judgment in the case of Kamlesh Kumar (Supra) is dated 19-06-1995.This shows that the Respondent No. 5 had joined at CMP College more than four months before the said judgment of the High Court.
28. No doubt, petitioner moved representation dated 1-3-1995 (without reference to Court judgments) to the Principal/Annexure-12 to the writ petition and thereafter representations dated 5-12-1995 and 20-7-1996 (Annexures 14 and 15) to the Director (referring Court judgments) but without notice to Respondent No. 5. Petitioner has not challenged Advertisement No. 14/1989. Petitioner filed present writ petition on 26-8-1996 i.e. more than one year after Padmaja Singh had joined CMP College (i.e. 9-2-1995).
29. Nisha Srivastava/petitioner had filed, along with writ petition, an application with the prayer to issue an interim order to stay operation of the impugned order dated 2-2-1995 and to restrain Respondent No. 5 from working on the post in question in CMP College. No interim order was passed by the Court in her favour. It is more than 10 years back when Respondent No. 5 was appointed as Lecturer, Music (Vocal) in CMP College. There is no pleading or material to show that she has not discharged her duties to the satisfAction of the COM of the college or that 'welfare' of the students has not been taken care of. It is also curious to note that no prayer was made to restrain COM of CMP college from confirming Respondent No. 5.
30. Placement of Respondent No. 5 by Director of Education (H.E.) on 9-2-1995 against the post in question, i.e. Lecturer, Vocal (Music) in CMP College, on the basis of her name being in the Select List, prepared by the Commission was bonafide exercise of powers under Section 13(4) of the Commission Act, as it was understood and followed at the relevant time by all concerned without an exception.
31. Learned counsel for the petitioner contends that the judgment and order of the High Court and the Supreme Court dated 19-6-1995 and 9-2-1998 in the case of Kamlesh Kumar (Supra) are retrospective and those judgments explained the law as it stood since inception. According to the petitioner, Respondent No. 5 could not be appointed/placed over the post in question on the basis of Select List of the Commission under Section 13(2) of the Commission Act because the said post was never advertised.
32. The above preposition, though sound in law, but does not help the petitioner in the facts of the present case.In Atma Ram Mittal v. Ishwar Singh Punia (para 6) Apex Court held:
"...It is well settled that the right of the parties will have to be determined on the basis of the right available to them on the date of the suit...." (underlined to lay emphasis)
33. A Judgment is retrospective inter se 'parties' to the proceedings. It is only prospective for the rest of the world unless otherwise specifically directed by the Court. To hold, otherwise, shall precipitate preposterous results.
34. The Apex Court, as the reading of its judgment in the case of Kamlesh Kumar Sharma (Supra) will show merely declared/explained Section 11,12 and 13 of the Commission Act as they are in the Statute Book. Had this Court of the Apex Court declared the provision in question as 'ultra vires', the position would have been different as held in K.N. Raghavan v. Habeeb Mohammad and Ors.- , wherein (para 6 and 7) read:
"6. Mr. Krishnamoorthy Iyer, learned Senior Counsel appearing for the appellant submits, in view of the fixation of the fair rent by the Rent Controller, if that be taken into consideration, he would not be in arrears of rent. Learned counsel made an attempt to submit that the provision is not ultra vires hence fixation of rent by the Rent Controller was just and proper, hence the decree of eviction is bad in law.
7. This submission suffers from patent illegality as there could be no question of fixing a fair rent under provisions which are held to be ultra vires. The only reason submitted for accepting fixation of rent by the Rent Controller is, since the appellant was not party to the proceedings in which the High Court declared the said provisions as ultra vires, hence not binding. The submission has no merit. When any provision is held to be ultra vires, it covers the field as against all its subjects who are within the jurisdiction of the said legislation and the court. Thus this submission to us looks strange that as he was not a party to it hence would not bind him, has no merit and is rejected. "
35. We are dealing in the present case where situation is converse to the facts of the case of K.N. Raghavan (Supra).
36. In Raymond Ltd. v. M.P. Electricity Board and Ors.-2000(Suppl. 3) JT 39 (Pr. 24)- the Apex Court observed:
"24. The peculiar fqcts and circumstances of these cases and the interests of justice, in our view, necessitate the application of the law declared therein only prospectively. The Electricity Board is a public authority of the State engaged in the generation and supply of electrical energy at concessional rates to different classes and category of consumers in the State. The construction placed by us is likely to have serious and adverse impAct upon the finances and the economic viability of the scheme underlying tariff and minimum guarantee charges already determined. It is impossible for the Board, at this point of time to make up or change the patter of tariff retrospectively to retrieve itself in this regard for the past period. The construction and execution of various developmental schemes and works are likely to suffer thereby a serious set back also. Keeping in view all these aspects, we will be justified in declaring that the law declared in these cases shall be for future application only and not for the earlier period. "
37. Apex Court in the case of Kamlesh Kumar Sharma (supra) no where specifically held that this judgment applied to all appointments whether made prior or after its judgment irrespective of the fAct that those appointments were challenged at relevant time.
38. There is no pleadings/submissions that Respondent No. 5 had played fraud or she is guilty of mis-representing facts when she filed application in response to Advertisement No. 14 of 1989 or at any subsequent stage during selection process in question.
39. It is now well settled that in case a candidate is selected/appointed (except by way of fraud or mis-representation) who did not possess 'minimum qualification' required in law but the qualification, before objection is taken to such appointment, which he or she lacked, is acquired, shall not be permitted/entertained at the behest of the employer or any other person to challenge such appointment on that score. In other words, appointment which may have been, even if assumed 'irregular' becomes 'regular' on acquiring the deficient qualification. The logic behind said principle is that the 'ground of objection' becomes non-existent and cannot be utilized as a pretext to terminate/cease the services of the concerned employee.
40. In the case of Ram Swarup v. State of Haryana and Ors., AIR 1978 SC 1526 (Para-3), Apex Court held:
"3... We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of labour laws in any one of the three capacities mentioned in Clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularized. The appellant worked as Labour-cum-Conciliation Officer from 1st Jan., 1968 and that being a post higher than that of Labour Inspector or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour laws in the post of Labour-cum-Conciliation Officer mu4be regarded as sufficient to constitute fulfillment of the requirement of five years' experience provided in Clause (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant was, therefore, clearly illegal and it must be set aside. "
41. In the case of Smt. Shanti Devi Verma v. The Deputy Director of Education, Region I, Meerut and Ors., 1982 UPLBEC 365, following above case-learned Single Judge of this Court, observed:
"10. On a parity of reasoning, I am inclined to hold that even though the appointment of the petitioner in the instant case may be said to be in breach of Section 16-F(1) of the U.P. Intermediate Education Act, as it then stood, nevertheless such appointment may only be regarded as irregular and not void."
Later, Full Bench of this Court in the case of Shanti Kunwar Chaudhary v. The Manager, Committee of Management Vidyawati Darbari Girls Inter College, Lukerganj, Allahabad and Ors., 1990(1) Allahabad Weekly Cases 684, para-7 following the ratio decidendi of the case of Ram Swamp (supra) held:
"7...On the date of promotion on 8-7-1973 all the three ladies were not eligible and their appointments were irregular. However, as these three ladies are working as lecturer for the last about 16 years, the question of their reversion does not arise. Their promotions should be deemed to have become regularized on the expiry of period of five years calculated from the date when they were appointed or could have been 'appointed as L. T. grade teacher. Supreme Court in Ram Swarup V. State of Haryana, , considered the question about the effect of the appointment if the appointee does not possess the requisite qualification.... The Supreme Court held that appointment when made was irregular and not void on account of not possessing one of the three requisite qualifications of eligibility and appointment shall be deemed to have become regular on expiry of period of five years...."
42. In the case of Bhagwati Devi and Ors. v. Delhi State Mineral development Corporation, para-6, Apex Court held-
"6...The initial minimum educational qualification prescribed for the different posts is undoubtedly a fActor to be reckoned with, but it is so at the time of the initial entry into the service. Once the appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. In our view, three years' experience, ignoring artificial break in service for short period/periods created by the respondent in the circumstances, would be sufficient for confirmation...."
43. On weighing attending circumstances of the case and to give a quietus and to the litigation, Court declines to exercise its extra ordinary liscretionary jurisdiction under Aricle 226, Constitution of India and refuse o disturb the appointment of Padmaja Singh/Respondent No. 5.
Writ Petition fails.
We make no order as to costs.