Judgment:
S.R. Singh, J.
1. Present petition has been instituted canvassing the validity of the order dated 25.8.1999 by means of which the Director of Higher Education has recalled his earlier order dated 17.8.1999 whereby the petitioner had been assigned to Narain P. G. College. Shikohabad as Principal of the said college.
2. Petitioner and one Dr. S. S. Yadav were amongst the candidates empanelled for appointment to various posts of Principal covered by advertisement No. 21 of 1995 publicised by the U. P. Higher Education Service Commission. Allahabad. Dr. S. S. Yadav glowed higher in the merit-list and excelled to the petitioner who figured at serial No. 5 of the merit-list of the O. B. C. candidates and because of his higher position in the merit-list. Dr. S. S. Yadav was assigned to Narain (P. G.) College, Shikohabad by the Director of Higher Education which college had been marked out as his first choice by the petitioner as welt. Thepetitioner was assigned to P. B. (P. G.) College at Pratapgarh by the Director of Higher Education. Allahabad by means of his letter dated 23.10.1996 though the college was not one of the five colleges indicated by the petitioner in his preference for appointment and as a consequence, he communicated with the Principal/Manager of the said College for Issuance of appointment letter in his favour in view of the Director's letter dated 23.10.1996. The aforesaid letter of the petitioner remained un-acted upon as the Management of the college did not issue any appointment letter in favour of the petitioner notwithstanding imperative direction to this effect issued by the Director, Higher Education vide Setter dated 8.6.1998. While the matter was lingering. Dr. S. S. Yadav. who was appointed Principal. Narain (P. G.) College Shikohabad, demitted the office on 19.7.1999. and the resignation received acceptance on 21.7.1999. The petitioner staked his claim for being appointed Principal. Narain P. G. College Shikohabad in place of Dr. S. S. Yadav. Upon resignation of Dr. S. S. Yadav. 4th respondent. Dr. Ram Autar Sharma, lecturer in the college was appointed officiating Principal. The officiating Principal made a representation to the Director Higher Education to the effect that the vacancy in the post of Principal occurring owing to the resignation of Dr. S, S. Yadav ought to be filled by fresh advertisement and not out of the panel prepared pursuant to the advertisement No. 21 of 1995. The Director of Higher Education by his notification dated 20.8.1999 cancelled his earlier letter dated 17.8.1999 whereby the Management of the college was requested to issue, appointment letter in favour of the petitioner and maintained earlier placement of the petitioner in P. B. (P. G.) College Pratapgarh.
3. We have heard Sri S. C. Budhwar, senior advocate, assisted by Sri C. B. Yadav for the petitioner, Sri Ashok Khare. senior advocate assisted by Sri A. K. Singh. representating Dr. Ravlndra Pal Singh, who is presently working asofficiating Principal after retirement of the 4th respondent and has moved an application dated .11.1.2001 on 16.3.2001 for being impleaded as respondent. Sri M. B. Saxena for the Committee of Management and the standing counsel representing Director Higher Education, have also been heard.
4. It has been canvassed by the learned counsel for the petitioner that the list sent by the Commission remains valid 'till the receipt of a new list from the Commission' as provided in sub-section (2) of Section 13 of the U. P. Higher Education Service Commission Act. 1980 and since the vacancy has arisen due to 'resignation', and the same has not been notified to the Commission under sub-section (3) of Section 12, the Director was justified under subsection (4) of Section 13 of the Act in intimating to the Management Narain P. G. College Shikohabad. the name of the petitioner who was very much in the list for appointment. The Director was. however, not justified, proceeds the submission, in cancelling the placement of the petitioner in the said college sans any opportunity of showing cause being given to the petitioner. For the respondents, it has been emphatically contended that the list sent by the Commission under subsection (1) of Section 13 remained valid till the end of the academic year in which it was prepared and not ad-infinitum irrespective of whether a new list has been received from the Commission or not. In the alternative, it has been canvassed for the respondents that after the selection held pursuant to the advertisement No. 21 of 1995, the Commission undertook fresh selections of candidates on the basis of advertisement Nos. 22 and 23 and the panel prepared pursuant to these advertisements were sent by the Commission to the Director of Higher Education vide letter dated 9.4.1997 and. therefore, the old list ceased to be valid and on that basis also, the petitioner cannot lay claim for appointment in the vacancy which was occasioned in the year 1999 due to resignation of Dr. S. S. Yadav.
5. With a view to appraising the submissions made across the bar. we do not consider it unnecessary to quote Section 13 of the Act. for answer to the submissions made by the learned counsel is inter-twined with the constructions of the provisions embodied therein. Section 13 of the Act is excerpted below :
'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 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 shows in the interviews, or in the examination and interviews 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 subsection (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, where to 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 subsection (4) or sub-section (5) to the candidate concerned.'
The relevant provisions contained in Section 13 of the Act came up for consideration before the Supreme Court in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, 1998 II) UPLBEC 743. In that case, the Director of Higher Education had made placement of one of the selected candidates. Dr. Kamlesh Kumar Sharma as Principal Maharaj Singh (P. G.) College. Saharanpur in purported exercise of power under Section 13 (4) of the Act. The vacancy in the post had occurred due to retirement of the incumbent Dr. R. P. Sharma on 9.7.1992 though he was given sessions benefit and continued upto 30.6.1993. Actual vacancy, thus, occurred w.e.f. 1.7.1993. Dr. Kamlesh Kumar Sharma was in the panel of candidates selected pursuant to advertisement No. 18 of 1992 published on 20.4.1992. The vacancy that was sought to be filled by the placement of Dr. Kamlesh Kumar Sharma was neither an unforeseen vacancy nor was it covered by advertisement No. 18 of 1992 pursuant to which Dr. Kamlesh Kumar Sharma was selected. The Supreme Court held as under :
'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 afterjoining, 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 subsection (4) of Section 13 is within the vacancies for which the Commission took interview or the examinations 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 come to an end after a period of one year, as was earlier, and would continue for a limited purpose as explained above till the selection in the next academic year in question is made and recommendations are sent with a fresh list.'
6. It would crystallise from the afore-extracted observations of the Supreme Court that the select-list referred to in sub-section (2) of Section 13 of the Act 'would not come to an end after a period of one year' and, therefore, the contrary view that the list referred to in Section 13 (2) is 'confined to the academic year' taken by the Division Bench of this Court in Dr. Yogesh Kumar Gupta v. State of U. P. and others, 1995 (2) UPLBEC 1125, stands impliedly reversed. The reason given by the Division Bench of this Court that 'continuing the old list beyond one academic year, would be permitting to include the second or many subsequent academic years which will be clearly in violation of the mandatory provisions contained in Section 12 of the Act,' does not hold good in view of the reasons given by the Apex Court. In fact, the Judgment of this Court in Dr. Yogesh Kumar Gupta (supra) was maintained by the Supreme Court for the 'reasons' assigned by their Lordship of the Apex Court and not for reasonselaborated by this Court. Even otherwise, if once a vacancy in a college is notified to the Commission, the list referred to in sub-section (2) will be unavailing notwithstanding its validity.
7. It has been clearly ruled by-the Apex Court in Kamlesh Kumar Sharma that 'all the circumstances visualised by sub-section (4) of Section 13 have to be within the vacancies already advertised and not beyond it.' The vacancy which was sought to be filled up in the case of Dr. Kamlesh Kumar Sharma was concededly not within the 'vacancies already advertised' and this reason alone was sufficient to exclude the applicability of sub-section (4) of Section 13 of the Act. The circumstances visualised by subsection (4) of Section 13 are : firstly, that the vacancy occurs for the unforeseen reason of death or resignation or otherwise : secondly, that such vacancy must occur during the period of validity of the list referred to in Section 13 (2) ; and thirdly, such vacancy has not been notified to the Commission under sub-section (3) of Section 12. The validity of the list, as held by the Supreme Court is not confined to the particular academic year. The word used 'otherwise' in Section 13 (4) of the Act has to be read as 'ejusdem generis', i.e., in group similar to death, resignation, long leave vacancy. Invalidation or person not joining after being duly selected as held by the Apex Court in the instant case, the vacancy was covered by the advertisement No. 21 and had occurred due to resignation of the selected candidate, namely. Dr. S. S. Yadav ; and it is also not disputed that the vacancy which occurred due to resignation of Dr. S. S. Yadav had not been notified to the Commission under sub-section (3) of Section 12 of the Act. Two of three conditions stipulated by sub-section (4) of Section 13 are thus satisfied. The only other condition that needs to be satisfied as to whether the vacancy due to resignation of Dr. S. S. Yadav occurred during the period of the validity of the list referred to in subsection (2). It has been urged by thecounsel appearing for the respondents that new lists were received by the Director from the U. P. Higher Education Service Commission on the basis of selection made pursuant to advertisement Nos. 22 and 23 and. therefore, the list prepared under sub-section (2) of Section 13 pursuant to advertisement No. 21 ceased to remain valid. The submission made by the learned counsel for the respondents cannot be countenanced. The 'new list' within the meaning of sub-section (2) of Section 13 must be such as may be available to fill the unforeseen vacancy occurring due to the death, resignation or otherwise. Even according to the respondents, the list prepared pursuant to the advertisement Nos. 22 and 23 cannot be made use of for purposes of vacancy which occurred due to resignation of Dr. S. S. Yadav in that it has. been contended by the respondents that the said vacancy must be filled by fresh advertisement. In our opinion, therefore, the term 'new list' in sub-section (2) of Section 13, must signify to be a list prepared under sub-section (1) of Section 13 on the basis of advertisement of vacancies including the vacancy in question in the manner prescribed under U. P. Higher Education Service Commission Regulations, 1983. Concededly, the vacancy has not yet been notified to the Commission and, therefore, the list prepared on the basis of advertisement Nos. 22 and 23 would not lead to expiry of the life of the list sent to the Commission pursuant to advertisement No. 21, The submission made on behalf of the respondents that the list prepared pursuant to the advertisement No. 21 had out-lived its utility does not commend itself for acceptance. In our opinion, so long as all the selected candidates of the list prepared under sub-section (2) are not appointed, the list would remain valid for the purpose of Section 13 (4) of the Act unless the unforeseen vacancy occurring due to death, resignation or otherwise is notified to the Commission before invoking the power under Section 13 (4) of the Act.
8. As a result of foregoing discussions, the following conclusions are deducible.
(a) Sub-section (4) of Section 13 of the Act will be attracted 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 ;
(b) The select-list prepared and sent to the Director of Education (Higher Education) under Section 13 (1) of the Act shall be valid till the receipt of a new list from the Commission ;
(c) The list referred to in subsection (1) of Section 13 will lapse only upon a new list being drawn in the manner prescribed by law. i.e.. in the manner indicated in subsection (1) of Section 13 read with Section 12 of the Act and related provisions contained in the U. P. Higher Education Service Commission Regulations. 1983. This necessarily follows that if the unforeseen vacancy referred to in subsection (4) was not included in any subsequent advertisement on the basis of which a new list is drawn, it would not be taken as 'new list' for the purpose of sub-section (2) of Section 13 ;
(d) Notwithstanding the validity of the list till receipt of a new-list. It will be unavailing in respect of an unforeseen vacancy referred to in subsection (4) which has been notified to the Commission in accordance with Section 12 of the Act and the provisions contained in the Regulations ; and.
(e) The view taken by the Division Bench in the case of Dr. Yogesh Kumar Gupta that the list prepared under subsection (1) of Section 12 will be 'confined to the academic year' and the supportingreason that 'continuing the old list beyond one academic year, would be permitting to include the second or many subsequent academic years which will be clearly in violation of Section 12 of the Act' have been impliedly reversed by the observations of their Lordships of the Supreme Court that the list would not come to an end after a period of one year.
9. In the result, therefore, the petition succeeds and the impugned order dated 25.8.1999 is quashed. The Director of Higher Education is. however, granted liberty to recall the order in case it is found that any candidate selected pursuant to advertisement No. 21 of 1995 higher in merit than the petitioner, still remains to be appointed and he/she is still willing to be posted at Narain P. G. College. Shikohabad.