- (1.) PALOK Basu, J. A serious challenge has been extended to the impugned order dated 20-7-1993 passed by the Director of Higher Education, Allahabad making placement of opposite party No. 5 Dr. Kamlesh Kumar Sharma as the Principal, Maharaj Singh College, Saharanpur, in alleged exercise of powers under Section 13 (4) of the U. P. Higher Education Service Commission Act, 1980 (for short, the Act ). The ultimate question arising for consideration would be as to whether the Director is empowered under the Act to pick up a name from the list of candidates sent by the Commission even for fulfilling a post of teacher/principal of a college which vacancy was non-existent when the said list was prepared and which vacancy was never advertised nor accord ed due publicity in accordance with the provisions of the Act.
(2.) THE relevant facts lie in a narrow compass. Maharaj Singh College (for short, the College) is a Post- Graduate Degree College at Saharanpur and is governed by the provisions of the U. P. State Universities Act (for short, University Act) and First Statutes of Meerut University framed under the University Act. One Dr. R. P. Sharma, who was the regular principal of the college retired on 9-7-1992 but worked upto 30-6-1993 and the vacancy accru ed actually on 1-7-1993. In pursuance of the First Statute No. 13-20, the Management of the college decided at its meeting on 22-6-1993 to appoint the petitioner Dr. Y. K. Gupta as officiating principal. A copy of the letter is Annexure 1 to the writ petition, the genuineness of which is admitted to the respondents. It has been stated in paragraph No. 8 that the petitioner took charge on 30-6-1993 from the out-going principal Sri R. P. Sharma. This averment is admitted. The U. P. Higher Education Service Commission, a statutory crea tion under the provisions of the Act, had published an Advertisement No. 18 of 1992 on 20-4-1992 whereby vacancy for thirteen posts of principals in Post-Graduate Colleges were advertised. A very relevant averment exist in para graph No. 13 of the writ petition. "that in the aforesaid advertisement name of the institution of the respondent No. 3 was not advertised and even at that very time no vacancy on the post of principal in the institution was in exis tence". The reply of the Director is that "the contents of paragraph No. 13 of the writ petition are not disputed except that, as the petitioner was not working as a principal in a substantive capacity, the vacancy for the principal deemed to exist and as such, attracted the provisions of 13 (4) of the Amended Act, 1992 which calls upon the Director to appoint a Principal on regular basis. " A select list of 13 candidates was published by the Commission on 8-4-1993. The Commission has also sent names of five more candidates being 25% extra candidates as envisaged by Section 13 (1) of the Act. The counter affidavit on behalf of the Commission says : It is significant to men tion that Dr. Kamlesh Kumar Sharma had applied in pursuance of the Adver tisement. No. 18 and he has been found suitable by the Interview Board and he has been placed in the list of successful candidates at serial No. 6. It is pertinent to mention that the list prepared by the Commission is on the basis of merit and the names placed in the said list are also in order of merit. " Further it says" In the instant case, Dr. K. K. Sharma was at the serial No. 6 in order of merit. Thus his name has been recommended for the post of principal in Maharaj Singh Post-Graduate College, Saharanpur. The petitioner has no right to hold the post of principal, as the post was neither advertised nor the Vice-chancellor has given his approval, In fact, no selection has taken place. Thus the appointment of the petitioner as officiating principal is without any autho rity. " (See paragraph Nos. 8,9,10 and 11 of the counter affidavit sworn by Sri J. K. Srivastava on behalf of the Commission. The Director has passed the impugned order dated 20-7-1993, relevant portion of which reads as under. (Translation by Court): "this has reference to the vacancy in the post of principal of your Degree College in the Post-Graduate Scale Rs. 4509-7300 on the retirement of Dr. R. P. Sharma. In the exercise of powers con ferred by Section 13 (4) of the Act the name of the following candi date is recommended for placement as principal in your Degree College from out of the list of recommended candidates sent by the Commission vide its Resolution No. 403. 2 dated 7-4-1993: Dr. Kamlesh Kumar Sharma, 12/317 Jagdishpuri Gandhi Road, Baraut. The original application of the candidate is enclosed herewith. You are directed to issue appointment letter in accordance with the provisions contained in Section 14 (1) of the Act and send a copy of it to this Office. It is necessary that 21 days' time be allowed to the applicant to join. . . . . . . . . . Dr. K. K. Sharma, Director of Higher Education, U. P. Allahabad. " Aggrieved by the aforesaid order the petitioner has filed this writ petition on 20-8-1993, counter affidavits were called and by an interim order, operation of the impugned order dated 20-7-1993 was stayed. The Director himself, a pairokar of the Commission, and, the recommended candidate Dr. K. K. Sharma, have filed counter affidavits to which replies have been given through rejoinder affidavit!. Sri Shailendra, learned counsel for the petitioner, Sri V. K. Shukla, learned counsel for the private respondent, Sri V. B. Singh, learned counsel for the Higher Education Commission and Sri Vineet Saran, learned Addl. Advocate General assisted by Sri R. K. Saxena, learned Standing Counsel on behalf of the Director have been heard at consi derable length for and against this writ petition. Looking at the extreme urgency in the matter, as jointly requested by learned counsel for the parties, this writ petition is being disposed of finally at the admission stage.
(3.) BEFORE taking up the discussion and consideration of the respective arguments begin, two facts should be noted here. The Act had quite a differently looking Sections 12 to 14 which were completely substituted by U. P. Higher Education Services Commission (Amendment) Ordinance No. 43 of 1991. The aforesaid Ordinance became U. P. Act No, 2 of 1992 and is opera tive from 22-11'1991. For all practical purposes, therefore, the present case or matters where vacancies have arisen after Ordinance No. 43 of 1991 came into being, shall be governed by the provisions of the Act as amended by U. P. Act No. 2 of 1992. Both parties have extensively relied upon the language used in the amended Sections 12 to 14 of the Act. Repeated reference to the provisions contained in those three sections has been made and, therefore, for ready reference the aforesaid three sections, which will govern the present pro ceedings, are quoted below : "12. Procedure for appointment of teachers,- (1) Every appointment as a teacher of any college shall be made by the management in accordance with the provisions of this Act and every appointment made in contravention thereof shall be void. (2) The management shall intimate the existing vacancies and the vacancies, likely to be caused during the course of the ensuing academic year, to the Director at such time and in such man ner, as may be prescribed. Explanation.-The expression "academic year" means the period of 12 months commencing on July 1. (3) The Director shall notify to the Commission at such time and in such manner as may be prescribed a subject-wise consolidat ed list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of lecherers of a College shall be such, as may be deter mined by regulation : Provided that the Commission shall with a view to inviting talented persons give wide publicity in the State to the vacancies notified to it under sub-section (3): Provided further that the candidates shall be required to indicate their order of preference for the various colleges vacancies wherein have been advertised. 13. Recommendation of Commission.- (1) The Commission shall, as soon as possible, after the notification of vacancies to it under sub-section (3) of Section 12, hold interview (with or without written examination) of the candidates and send to the Director list recommending such number of names of candidates found most suitable in each subject as may be, so far as practicable, twenty-five per cent more than the number of vacancies in that subject such names shall be arranged in order of merit shows in the interviews, or in the examination and interviews if an examina tion is held. (2) The list sent by the Commission shall be valid till the receipt of a new list from the Commission. (3) The Director shall having due regard in the prescribed manner, to to order of preference if any, indicated by the candidates under the second proviso to sub-section (4) of Section 12, intimate to the management the name of a candidate from the list referred to in sub-section (1) for being appointed in the vacancy intimated under sub-section (2) of Section 12. (4) Where a vacancy occurs duo to death, resignation or otherwise during the period of validity of the list referred to in sub-section (2) and such vacancy has not been notified to the Commission under sub- section (3) of Section 12, the Director may intimate to the management the name of a candidate from such list for ap pointment in such vacancy. (5) Notwithstanding anything in the preceding provisions, where to abolition of any post of teacher in any college, services of the par son substantively appointed to such post is terminated the State Government may make suitable order for his appointment in a suitable vacancy, whether notified under sub-section (3) of Sec tion 12 or not in any other college, and thereupon the Director shall intimate to the management accordingly. (6) The Director shall send a copy of the intimation made under sub-section (3) or sub-section (4) or sub- section (5) to the candidate concerned. 14. Duty of Management.- (I) The management shall, within a period of one month from the date of receipt of intimation under sub-section (3) or sub-section (4) or sub-section (5) of Section 13, issue appointment letter to the person whose name has been inti mated. (2) Where the person referred to in sub-section (1) fails to join the post within the time allowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such parson is otherwise not available for appointment, the Director, shall on the request of the management intimate fresh name from the list sent by the commission under sub-section (1) of Section 13 in the manner prescribed. " Having thus noted the relevant provisions all that now has to be decided is as to whether the petitioner's contention that the impugned order would not have been passed and no appointment from out of a list which was prepared much before the present vacancy arose, is correct or respondent's contention that the said list's life continues till the receipt of a new list from the Commission should be interpreted to mean that the Director is empowered to direct any name from that list to be appointed as teacher/principal, is correct. Three propositions of law are unquestionable. Firstly, that there shall be equality of opportunity for all citizens in matters relating to employ ment. (Article 16 of the Constitution of India ). Secondly, that Committees of Management are incharge of Educational Institution and have to run it themselves subject to any provision which may be made by relevant laws for regulating its statutory functions. Thirdly, that the provisions of the Act are the last words concerning selection of candidates for vacancies occurring in Degree College or Institution governed by the Act. The analysis of the facts from the petitioner's point of view and substance of the arguments may be classified as under : (a) Any and all vacancy (vacancies) existing and likely to be caused iu the academic year, i. e. , between 1st July to 30th June next shall be intimated by the management to the Director. (b) The Director will notify to the Commission subject-wise consoli dated list of vacancies intimated to him from all colleges. (c) The Commission shall give wide publicity to the vacancies notified with a view to inviting talented persons. (d) The Commission shall hold interview with or without written examination of the candidates as soon as possible after notification of the vacancies to it. (e) A list of suitable candidates for each post subject-wise and merit-wise which will include 25% more than the number of vacancies in that subject shall be recommended by the Commission. The list shall be valid till receipt of a new list from the Commission. (f) The Director will intimate the Management about the candidate from the list prepared by the Commission concerning vacancy inti mated by the management under Section 12 (2 ). On the aforesaid premise it was vehemently argued on behalf of the petitioner that the right to make appointment is absolute with the Committee of manage ment. The management has a right to insist on fulfilling the legal require ments for getting the best person selected for vacancy in the institution run by the management. Likewise, every candidate, may be teacher in the college in which the vacancy for the post of principal arises, would like to compete for the said post if it is duly advertised and publicised by the Commission after vacancy is notified to it by the Committee of Management. In this connection argument proceeds that the provisions contained in Section 13 (2) which save that the list sent by the Commission shall be valid till receipt of a new list from the Commission can and should not mean anything more than the vacan cy occurring in the academic year (1st July to 30th June next ). It was argued that while passing the impugned order the Director has taken recourse to sub section (4) of Section 13 which is wholly inapplicable.;