- (1.) WE have heard Shri Shailendra, learned Counsel for the Petitioner. Learned Standing Counsel appears for the State Respondents.
(2.) THE Petitioner was selected and placed at serial No. 1 in the waiting list of general category in pursuance to advertisement No. 41 issued by the U.P. Higher Education Service Commission for appointment as Lecturer in 'Agriculture Chemistry'. By this writ petition, he has challenged an order passed by Dr. Ramanand Prasad, Director of Higher Education, U.P. Allahabad dated 3.1.2011 by which his placement order in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur dated 23.11.2010, issued by Shri Mian Jan, the out going Director of Education (Higher Education) U.P., retired on 30.11.2010, has been cancelled, on the ground that it was against the rules and that the letter number, by which the placement order was issued by the office of Director of Higher Education, U.P. Allahabad, is fraudulent. Learned Standing Counsel appearing for the State -Respondents was required to seek instructions as to why Petitioner's placement order has been cancelled. He has placed on record the instructions signed by Dr. Ramanand Prasad, Director, Higher Education, U.P. Allahabad. The instructions made part of the record, are quoted as below: Manish Kumar Gaur v. State of UP and Ors. Writ Petition No. 3733/2011 INSTRUCTIONS The abovenoted writ petition was listed for hearing before the Hon'ble Court on 21.1.2011 and after hearing the Hon'ble Court has been pleased to direct the Standing Counsel to seek instruction and place the same before the Hon'ble Court on the next date of hearing i.e. 1.2.2011. The instructions as required by the Hon'ble Court is being submitted as below: 1. That through the instant writ petition the Petitioner has prayed for order or direction in the nature of certiorari quashing the order dated 3.1.2011 whereby the Director, Higher Education has cancelled the placement order of the Petitioner in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur for the reasons that the said placement has been made on an unadvertised vacancy as well as for not being properly entered in the dispatch register of the Directorate of Higher Education. The photocopy of relevant page of dispatch register is being annexed as Annexure No. 1. 2. That the Petitioner who was selectee of advertisement No. 41 and stood at serial No. 1 in the waiting list of the General Category in the Agriculture Chemistry subject was given placement in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur on the post which fallen vacant due to single transfer Dr. Pramod Kumar, Reader, Agricultural Chemistry to C.C.S. P.G. College, Machra, Meerut vide order dated 23.11.2010. 3. That it is pertinent to submit that the post on which the Petitioner was given placement was neither notified to the Commission nor it was advertised by the Commission in its advertisement No. 41 (Annexure 1 to the writ petition). 4.THAT the Hon'ble Supreme Court in Kamlesh Kumar Sharma's case clearly held that the placement of a selected candidate can not be made on an unadvertised post. It is humbly submitted that as per ruling given by the Hon'ble Apex Court the placement of a candidate is to be within the vacancies which has been advertised and not beyond it. The photocopy of judgment dated 9.2.1998 K.K. Sharma v. Yogesh Kumar Gupta is being annexed as Annexure No. 2. 5.THAT the State Government vide letter No. 2324/Sattar -5 -2010 dated 4.12.2010 has directed the Director, Higher Education not to implement the orders passed by the then Director, Higher Education as such orders were not properly issued and entered in the dispatch register of the Directorate of Higher Education. That the orders issued from 1.11.2010 to 30.11.2010 by the then Director, Higher Education were reviewed by the Director, Higher Education and it was found that the order dated 23.11.2010 of placement of Petitioner was not in accordance with law. 6.THAT in view of the facts and circumstances stated here in above paragraph it is most humbly submitted that the impugned order dated 3.1.2011 is just fair and reasonable and does not suffer from any legal infirmity. 7.THAT the instant instructions is being submitted in compliance of the Hon'ble Court's order dated 21.1.2011. It is most humbly prayed that the Hon'ble Court may kindly be pleased to take this instruction on record. Dr. (Ramanand Prasad)Director, Higher Education,U.P., Allahabad
(3.) It is not denied that the Petitioner was placed at serial No. 1 in the waiting list in general category in 'Agriculture Chemistry' in the selections by the Commission in pursuance to Advertisement No. 41, and was given placement order dated 23.11.2010, in Gochar Mahavidyalaya Rampur Maniharan, Saharanpur. It is also not denied that the post in question had fallen vacant due to single transfer of Dr. Promod Kumar, Reader, Agricultural Chemistry to C.C.S. P.G. College Machra, Meerut, for which permission to transfer was given on 28.6.2007, after the advertisement No. 41, was issued by the Commission. On these admitted facts, it is apparent that the post on which the Petitioner was given placement had fallen vacant on the single transfer of Dr. Promod Kumar, much after the advertisement, was issued by the UP Higher Education Commission on 7.2.2007, and that it was neither requisitioned by the College, advertised nor any interview was held for it by the Commission.;