AJOY NATH RAY, S.RAFAT ALAM , ASHOK BHUSHAN JJ. - (1.) THIS is a reference made by a Division Bench in Civil Misc. Writ Petition No. 3538 of 2005 (Dr. Vinay Kumar V/s. the Director of Education (Higher), Allahabad and Ors.).
(2.) THE three questions referred by the Hon ble Division Bench will be found at the end of the judgement at internal Page 16. The said three questions are set out below: - 1. Whether law laid down in Dr. Prakash Chandra Srivastava V/s. Director of Higher Education, Allahabad and Anr. 2003 (1) AWC 142 by this Court and followed in Alak Rani Gupta (km.) V/s. Director of Education (Higher) and Anr. 2003 (2) ESC 944, is contrary to and in violation of the letter and intent of the express language used by the legislature in Section 13 of the Act, 1980 read with Regulation 5 of Regulations, 1983? 2. Whether it is permissible for the Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution to either add or amend a statutory provision by enunciating an interpretation, which in its opinion, is just and proper? 3. Whether there is a direct conflict between the ii,i ratio of the two cases Dr. Prakash Chandra Srivastava (supra) and Km. Alka Rani Gupta (supra) on one hand and that of in Dr. Ranjana Tiwari V/s. Director, Higher Education of U.P. and Ors. (2003) 3 E.S.C. (All) 1489 on the other, which deserves to be resolved by an authoritative pronouncement?
(3.) BRIEF facts of the case giving rise to this reference need to be noted for appreciating the questions referred to this Bench. The UP. Higher Education Service Commission established under Section 3 of the U.P. U.P. Higher Education Service Commission Act; 1980 issued advertisement No. 32 of 2002 advertfsing several vacancies of lecturers in different subjects in various non Government Colleges. The petitioner applied for the post of Lecturer Mathematics, while applying he also gave first preference to a college, namely, K. K. College, Etawah, Under the Government order dated 7.4.1998 the petitioner was appointed to teach Mathematics in K.K. College, Etawah on honorarium basis with the approval of the Director of Education dated 7.2.2004. The Commission made selection and declared merit list against thirty eight posts of lecturers Mathematics in which list the name of the petitioner was also included as against other backward category candidates. The Committee of Management claimed to have given no objection dated 30lh November, 2004 for appointment of the petitioner in K.K. College, Etawah. Petitioner made a representation to the Director of Education praying for his placement in K.K. College, Etawah. Petitioner filed the present writ petition praying for a writ of mandamus commanding the respondent No. 1, the Director of Education (Higher) UP. Allahabad to make placement of the petitioner as Lecturer Mathematics in K.K. College, Etawah in accordance with law laid down by this Court in case of Alka Rani Gupta (Km.) V/s. Director of Education (Higher ) and Anr. 2003 (2) ESC 944. The Division Bench before whom the writ petition came for hearing finding itself unable to agree with the law laid down in the above mentioned judgement of Allka Rani Gutpa (Km.) V/s. Director of Education (Higher) and Anr. (supra) referred the above noted three questions for consideration by this Bench.;