A.K.YOG, J. - (1.) KM . Nisha Srivastava, the petitioner before us, has filed this writ petition under Article 226, Constitution of India mainly with the prayer : (i) to issue a writ of certiorari to quash impugned order dated 2.2.19957 Annexure-11 to the writ petition; (ii) to issue a writ restraining Dr. (Smt.) Padmaja Singh/respondent No. 5 from working on the post of Lecturer, Music (Vocal) earlier held by one Madhuri Saxena-called 'post in question1 in Chaudhary Mahadeo Prasad Degree College, Allahabad; called 'CMP College'; and (iii) to issue a writ of certiorari to quash letter of appointment dated 9.2.1995/Annexure-l 1 to W.P. issued on behalf of Respondent No. 21 Committee of Management, CMP College, Allahabad (for short 'COM') in pursuance to the order of placement dated 2.2.1995 (Annexure-CA-2 to the counter-affidavit of respondent No. 2/C.O.M.) issued by Director of Education (Higher Education), U.P., Allahabad, for brief 'Director'/Respondent No. 3.
(2.) ADMITTED facts of the case are summarized hereunder. SI. Date Particulars No 1. 20.5.1989 U.P. Higher Education Service Commission issued Advertisement No. 14 of 1989 inviting applications to fill up eight posts (3 permanent, 4 temporary and one time bound) of Lecturer Music (Vocal): 1. DAV College, Dehradun (Permanent) 2. Manila Sewa Sadan Degree College, Allahabad (Permanent) 3. Juhari Devi Girls Degree College, Kanpur (Permanent) 4. Rameshwar Dar Agarwal Kanya Mahavidyalaya, Hathras (Temp.) 5. Mahatma Gandhi Balika Mahavidyalaya, Firozabad (Temp.) 6. Raja Mohan Girls Degree College, Agra (Temp.) 7. B.D. Jain Girls Degree College, Agra (Temp.) 8. Avadh Girls Degree College, Lucknow (Part time) (See Annexure-1 to SCA of Resp.-sworn on 10.10.1999) SI. Date Particulars No. 2. 27.8.1991 Substantive vacancy on the post of Lecturer Music (Vocal) in CMP College due to untimely demise of erstwhile incumbent Smt. Madhuri Saxena 3. 3.10.1991 Letter of Principal of CMP College informing vacancy over post due to death of Madhuri Saxena to Director, Education (H.E.), U.P. at Allahabad. (See Annexure-2 to SCA-II-sworn on 12.9.1999 on behalf of Resp. No. 5) 4. 24.3.1992 Petitioner engaged purely on part time basis of fixed honorarium terminable without prior notice./Annexure-2 to Writ Petition. (See Paras 10 and 13 of C.A. of COM/Resp. No. 2) 5. 20.7.1992 Petitioner was re-engaged without reference to tenure but on old term i.e., part time on fixed wages (on contract basis). (Annexure-3 to Writ Petition.) 6. 25.7.1992 Petitioner joined CMP Degree College-as part-time teacher on fixed wages. (Annexure-3 to W.P.) 7. 21.12.1992 Order terminating Services of petitioner challenged by filing C.M.W.P. No. 1131 of 1995. 8. 7.1.1993 Interim order granted-petitioner allowed to continue as part-time teacher. 9. 20.2.1993 Advertisement No. 19 in Amar Ujala (Agra)-5 posts of Lecturer Music (Vocal). (See Annexure S.A.-l to Supplementary Counter Affidavit-sworn on 2.9.1998) 10. 30.6.1993 Petitioner applied against Advertisement No. 19 receipt of application issued by UPHESC (Annexure-17 to Writ Petition) 11. 23.3.1994 Selection against Advertisement No. 14 of 1989 declared. As per record produced by U.P. Higher Education Service Commission, Respondent No. 5 selected against the post of DAV College, Dehradun. The said vacancy was not available at the time of selection of Respondent No. 5 as the person working at Dehradun on the said post has been regularized. 12. 21.7.1994 Respondent No. 5 given placement to K.D. Degree College, Mirzapur (Annexure-7 to Writ Petition). 13. August, 1994 Appointment letter given to Smt. Padmaja Singh to join K.D. Degree College, Mirzapur. (Annexure-8 to Writ Petition). 14. 2.9.1994 Letter requesting Director of Education (H.E.) to fill up vacancy occurred due to demise of Smt. Madhuri Saxena. (Annexure-3 to C.A. of Respondent Nos. 1 and 3). U.P. Local Bodies and Educational Cases 2006 SI. No. Date Particulars 15. 26.11.1994 16. 26.11.1994 17. 2.2.1995 18. 2.2.1995 19. 9.2.1995 20. 5.5.1995 5.12.1995 20.7.1996 21. 15.7.1998 22. 12.10.1998 Intimation of vacancy of post of Lecturer, Music (Vocal) in CMP Degree College, sent by the Principal, CMP Degree College, Allahabad to Director of Education (H.E.) (in reference to his letter dated 12.10.1994). (Annexure-1 to Writ Petition). Dr. Padmaja Singh failed to join K.D. Degree College, Mirzapur. (Annexure-9 to Writ Petition) Placement of Dr. Padmaja Singh in K.D. Degree College, Mirzapur cancelled by Director of Education (H.E.) (Annexure-10 to Writ Petition). Director of Education (H.E.) issued fresh order of placement against unadvertised vacancy of Lecturer, Music (Vocal) in CMP Degree College, Allahabad-exercising power under Section 13(4) of U.P. Higher Education Service Commission Act. (Annexure-11 to Writ Petition) Appointment letter issued by Committee of Management, CMP Degree College, Allahabad in favour of Dr. Padmaja Singh. Representations to Director of Education (H.E.) objecting illegal appointment of Resp. No. 5 (Annexures-134, 14 and 15 to Writ Petition.) Writ Petition No. 1131/1998, Kr. Nisha Srivastava v. Committee of Management, dismissed. Review petition against the jt. and order dated 15.7.1998 along with application under Section 5, Limitation Act. Comparative academic qualifications of Padmaja Singh (Respondent No. 5) and Nisha Srivastava (petitioner) are as follows : Dr. Padmaja Singh (Respondent No. 5) Dr. Nisha Srivastava (Petitioner) Parti­culars Year Marks Divn. %tage Year Marks Divn %tage High School 1970 328/500 1st 65.6% 1981 260/500 2nd 52% Inter 1972 314/500 1st 62.8% 1984 273/500 2nd 54.5% Prabhakar 1975 - 1st - 1985 184/300 1st 62% B.A. 1974 451/800 2nd 56% 1986 468/900 2nd 52.8% M.A. 1984 576/800 1st 72% 1988 614/1000 1st 61.2% Ph.D. 1992 Certificate issued on 31.3.1993 1999 (Joining Jan. 1993) Certificate issued on 6.6.2000 NET - - - - 1998 Cleared - -
(3.) LEARNED Counsel representing U.P. Higher Education Services Commission/Respondent No. 4 (for brevity 'the Commission') stated that the Commission shall not file counter-affidavit and instead place original record of the case before the Court; (vide order dated 7.7.2005 on the order sheet of the case).;