- (1.) LIST revised. No one is present on behalf of the petitioner. Sri Ved Byas Mishra is present on behalf of the Respondent -University.
(2.) BY means of the present petition, petitioner is seeking the following reliefs: - (i) to issue a writ, order or direction in the nature of certiorari call for the record of the case, quashing the impugned advertisement No. 1/2010 dated 10.10.2010 (Annexure -1 on page 24 to the writ petition) made by the Sampurnand Sanskrit Vishwavidyalaya, Varanasi. (ii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to proceed with recruitment proceeding in choosen, taking into account the ratio of judgment passed by Hon. Apex Court in the matter between State of Uttar Pradesh VS M.C. Chattopadhyaya, 2004 12 SCC 333 and Hon'ble Court in the matter between State of Uttar Pradesh and Dr. D.P. Yadav ( Civil Misc. Writ Petition No. 53197 of 2006). (iii) a suitable order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (iv) to award the cost of petition in favour of the petitioner".
(3.) WE have perused the impugned advertisement No. 1/2010 dated 12.1.2010. We find that the advertisement treats the University as unit for the purpose of reservation, which is in clear violation of Article 16 of the Constitution of India and the law laid down by the Apex Court in the case of State of U.P. and others Vs. M.C. Chattopadhyaya and others, 2004 12 SCC 333. The decision of the Apex Court has been followed by the Division Bench of this Court in Writ Petition No. 53197 of 2006 ( Dr. Durga Prasad Yadva Vs. State of U.P. and others) and in the case of Vishwajeet Singh ( Dr.) and others Vs. State of U.P. and others, 2009 2 UPLBEC 1443. In the case of Vishwajeet Singh(Dr.) and others, the Division Bench of this Court has issued the following directions: - (i) The advertisement No. 37 dated 9.7.2003 insofar as it advertised 467 vacancies which arose upto 30.6.2003 due to death, resignation or retirement is quashed. However, the advertisement insofar as it advertises 371 carry forward vacancies which remained unfilled is maintained. (ii) The Director, Higher Education shall before declaring the result against 371 carry forward vacancies shall re -determine the number of vacancies against which select list be issued by applying reservation and roster subjectwise and college -wise. The declaration shall be confined only to those vacancies which were carry forward vacancies and were advertised earlier by advertisement No. 29 and could not be filled up. The Director may determine on the basis of records available with him or may call for any other reports or record from management or any other competent authority. The candidates whose names are included in the select list shall be given option to give fresh choice of the colleges as required by the second proviso to Section 12 (4) which has become necessary in view of quashing the advertisement against 471 vacancies and direction issued by this order to the Director to redetermine the correct number of reserved vacancies out of carry forward vacancies against which select list is to be issued. The Director shall complete the aforesaid exercise within three months from the date of production of certified copy of this order and thereafter take appropriate steps for issuing recommendation for appointment in accordance with U.P. Higher Education Services Commission Act, 1980. (iii) The Director shall take steps for advertising 471 vacancies which were covered by advertisement No. 37 applying the rules of reservation and roster as per the above directions by taking necessary steps at an early date. (iv) The rules of reservation and roster shall be applied collegewise and subjectwise when there are plurality of posts as indicated above. Doubting the decision in the case of Mahendra Kumar Gond, the matter has been referred to the Full Bench of this Court in the case of Heera Lal Vs. State of U.P. and others, 2010 3 UPLBEC 1761. The Full Bench has observed that the decision in the case of Mahendra Kumar Gond Vs. D.I.O.S., 2009 6 ADJ 674, having been rendered without taking notice of the two Division Bench judgments in the cases of Vishwajeet Singh and Smt. Pholpti are not approved. The judgment of Dr. Vishwajeet Singh is approved.;