- (1.) HEARD Sri Ashok Khare, learned senior counsel assisted by Sri Seemant Singh for the petitioners and the learned Standing Counsel for the State -respondents.
(2.) BY the instant petition, the petitioners have prayed for a direction to the respondents to issue appointment letters in favour of the petitioners on the post of Lecturers for their respective subjects and also to allow joining of the petitioners on the post of Lecturers in their respective colleges pursuant to the selection process carried out under Advertisement No.42 of 2008 issued by U.P. Higher Education Service Commission, Allahabad.
(3.) A perusal of the record reveals that challenging the selection process pursuant to the advertisement no. 42 of 2008, Writ A No. 51212 of 2010 (Dr. Archana Mishra v. State of U.P. and others) was filed before this Court where, on 26.08.2010, an interim order was passed. The operative portion of which reads as follows: - "After hearing aforesaid and on a notice of these facts, we are of the view that henceforth, all the respondents are to stay their hands in respect to the progress pursuant to the advertisement no.42 and placement, if any has taken place, that will not be given effect without taking leave of this Court" The aforesaid interim order was vacated by order dated 23.12.2010 and, after framing certain questions, a reference was made to a Bench larger than three Judges. The operative portion of the order dated 23.12.2010 is being reproduced herein below: - "26. In the facts and circumstances, we may observe that in order to correctly lay down the law and if found necessary to save the earlier selections, we refer the following questions to be considered and decided by a Bench, larger than three Judges with a request to Hon'ble the Chief Justice to constitute the Bench, as early as possible to resolve the conflict: - 1. W hether the rules of reservations under the U.P. Act No. 4 of 1994 are applicable to appointment on the post of lecturers, by direct recruitment, in the aided postgraduate and undergraduate colleges in the State of UP, affiliated to the State Universities by clubbing all the vacancies as provided under Section 12 (3) of the UP Higher Eduction Service Commission Act, 1980 subject -wise; or the vacancies have to be worked out for applicability of rules of reservation college -wise and subject -wise? 2. W hether there has to be plurality posts in the cadre, for applying the rules of reservation, which means more than one; or there has to be at least five posts in the cadre for applying the rules of reservations? 3. W hether the vacancies arising in any recruitment year under Rule 3 (2) of UP Act No. 4 of 1994 can be filled up separately even if they have not been advertised earlier, in that recruitment year or in the subsequent recruitment year, or such reserved vacancies have to be advertised at least once to be carried over for the recruitment in the same year or in the subsequent year? 4. W hat is the meaning of the words 'unfilled vacancies' in Section 3 (2) of UP Act No. 4 of 1994? 5. Whether Dr. Vishwajeet Singh's case and the Full Bench decision in Heera Lal's case have been correctly decided? 27. The U.P. Higher Education Service Commission advertised and has held selections for the 337 vacancies reserved for Scheduled Caste (305) and Scheduled Tribes (32) in which results of 21 subjects have been declared and sent to the Director of Education (Higher Education) U.P. for placements. The interviews in 13 subjects have not been held so far. In the meantime Advertisement Nos. 43, 44, and 45, have also been issued and applications have been received. The Advertisement No. 45 includes 548 post of lecturers, subject -wise and in which half the posts are unreserved. Taking into account the fact, that the petitioners are honorarium teachers, and do not have vested and indefeasible rights to claim the posts, and further that all the unreserved vacancies were filled up on the date of Advertisement No. 41, and in fact more than 1000 unreserved candidates were working in excess of the total cadre strength of the lecturers, subject -wise, we do not find any justification to continue the interim order dated 26.8.2010. The interim order dated 26.8.2010 is thus vacated. The selections, placements and appointments of the reserved category candidates in pursuance to the Advertisement no.41 of the year 2008, will be subject to the result of these writ petitions.";