- (1.) R. Dayal, J. Point for decision in both these writ petitions is whether it is open to a candidate, who having been selected by U. P. Higher Education Services Commission in accordance with the proce dure stipulated in sections 12 and 13 (1) of the Uttar Pradesh Higher Education Ser vice Commission Act, 1980 (hereinafter referred to as the Act) and whose name has been intimated to the management of a col lege under Section 13 (3) by the Director of Education having due regard to the order of preference, if any, intimated by him under the Second Proviso to sub-section (4) of Section 12 and who has been consequently appointed by the management under Sec tion 14 (1) of the Act, not to join the college where the appointment has been made but claim that he or she should be appointed to any other college.
(2.) VACANCIES for the post of lecturer in Ancient History were advertised by the U. P. Higher Education Service Commission vide advertisement No. 20/94. Amongst others Km. Ragini Srivastava, petitioner in writ petition No. 30332 of 1996, Smt. Sumita Tkndon, petitioner in writ petition No. 32304 or 1996 and one Sri Ashutosh Dwivedi impleaded as respondent No. 7 in writ petition No. 32304 of 1996 were selected by the Commission. Km. Ragini Srivastava was third, Smt. Sumita Tkndon 8th and Sri Ashutosh Dwivedi 9th, in order of merit of the selected candidates. Both the petitioners indicated C. M. P. Degree Col lege as the first choice under the Second Proviso to sub-section (4) of Section 12. However, the name of Km. Vibha Mishra, who was 2nd in the order of merit, was intimated by the Director for C. M. P. Degree College, Allahabad. The name of Km. Ragini Srivastava was intimated by the Director for being appointed to Harish Chandra Post Graduate College, Varanasi which was her second preference. The name of the other petitioner, Smt. Sumita Tandon, was intimated to the management of M. D. Degree College, Maunath Bhanjan, Mau as she was not found entitled to be recommended for any specific preference indicated by her having regard to order of merit. Km. Ragini Srivastava was issued ap pointment letter as per the intimation given by the Director of Education, but she did not join. The other petitioner, Smt. Sumita Tandon intimated unwillingness to join the college for which her name was recom mended. Subsequently, another vacancy arose in C. M. P. Degree College, Allahabad on Dr. Asharfi Lal Srivastava attaining the age of superannuation on 4-1-1996. He was to vacate office finally on 30-6-1996 on ex piry of his term of re-employment. By the letter dated 18-2-1996, the Principal of C. M. P. Degree College made a request to the Director of Education to recommend the name of any selected candidate to fill the vacancy. This letter was followed by a reminder dated 4-4-1996. But the Director of Education did not recommend the name of any candidate to fill the vacancy. Km. Ragini Srivastava has alleged in her petition that respondents 1 and 3 wanted to nominate Smt. Sumita Tandon on the post of lecturer in C. M. P. Degree College on ac count of political pressure in preference to her even though Smt. Sumita Tandon is below her in the order of merit. Km. Ragini Srivastava has detailed her personal problems to join at Varanasi. Smt. Sumita Tandon has also alleged that due to personal difficulties it is not possible for her to join the college at Maunath Bhanjan. Sri Ashutosh Dwivedi was appointed as lec turer in S. B. P. G. Degree College, Badlapur, district Jaunpur. He also did not join the college there. Later, he was appointed in Allahabad Degree College, Allahabad. Case of both the petitioners is that since both of them were higher in order of merit than Sri Ashutosh Dwivedi, Sri Dwivedi should not have been appointed in preference to them. They have claimed mandamus for being appointed on the post of lecturer in Ancient History in C. M. P. De gree College, Allahabad. Smt. Sumita Tan don has, in the alxjrnative, also claimed mandamus to be appointed in Allahabad Degree College, Allahabad and a further mandamus to the Director of Education asking Sri Ashutosh Dwivedi to join as lec turer in Ancient History in S. B. P. G. Degree College, Badlapur, Jaunpur. Sri Dwivedi has stayed in his counter-affidavit that after receiving his appointment letter at Bad lapur College, he came to know that there was leave vacancy in Allahabad Degree Col lege, Allahabad as one Sri Shiv Prakash Yadav, lecturer, had gone on leave with ef fect from 13-11-1995 to 12-11-1996 end so he made a request by his letter dated 26-3-1996 that instead of being posted in substan tive vacancy existing at Badlapur he might be permitted to opt for appointment in the leave vacancy existing in the Allahabad De gree College, Allahabad and that having opted for appointment in the leave vacancy, he took the risk as the post at Badlapur was filled up by some other person and there was every likelihood of his appointment coming to an end on the expiry of the leave vacancy, though subsequently the leave vacancy be came substantive vacancy, as Sri Shiv Prakash Yadav resigned with effect from 1-10-1996. In the counter- affidavit filed by Dr. Suresh Chandra Tiwari on behalf of respondents 1 and 3 also it is averred that the vacancy in the Allahabad Degree Col lege was not a clear and substantive vacancy but a leave vacancy and that the name of Sri Ashutosh Dwivedi was intimated to the management of Saltanat Bahadur Degree College, Badlapur, Jaunpur and in giving leave vacancy appointment to Sri Dwivedi, there was nothing unjust and unfair. Fur ther, it is stated on behalf of respondents 1 and 3 that it is not feasible to allow a change in the order of preference of colleges at any time, as to allow such changes would create endless and intricate problems. The counter- affidavit further states that after Km. Ragini Srivastava did not join her duties in Harish Chandra Post Graduate Degree College, Varanasi, the college authority requested the Director to quash the recommendation in her favour and to send some other selected candidate, as teaching work was suffering and the college was in dire need of a selected teacher. Be sides, no vacancy existed in C. M. P. Degree College when names of the petitioners were intimated to the managements, as stated earlier; the vacancy in that college (C. M. P. Degree College) fell on 1-7-1996 and has been notified to the Commission vide letter dated 8-8-1996 under Section 12 of the Act and it is, therefore, to be filled in only in accordance with the provisions of the Act. A supplementary affidavit in reply has been filed by the petitioner, Smt. Sumita Tandon deposing that there are instances where can didates were allowed to change their preference subsequent to the issue of ap pointment letters in the first instance. It is not denied that in respect of both the petitioners, the Director of Educa tion intimated to the managements of the respective colleges, having due regard to the order of preference indicated by them as per the order of merit of the selected candidates and both were not prepared to join the respective college in accordance with the intimation of the Director but were claim ing to be appointed in the C. M. P. Degree College on a vacancy which was not notified by the College to the Commission and for which the selection process contemplated under Sections 12 and 13 (1) of the Act had not been gone through. It is submitted on behalf of the petitioners that the list sent by the Commission is still subsisting as no new list has been sent by the Commission and, therefore, it was open to the Director to intimate to the management the name of any candidate from the list for appointment to the C. M. P. Degree College under sub section (4) of Section 13 of the Act. On the other hand, it is submitted on behalf of the State Government that once the names of the petitioners were recommended having due regard to the preferences indicated by them and the order of merit of the selected candidates, the right of the petitioners to get appointed in pursuance of the applications made by them got exhausted with the result that it was not open to them not to join the respective college for which intimation had been sent and to make claim for a vacancy which arose subsequently and which was not notified. To appreciate the rival conten tions, Sections 12, 13 and 14 of the Act, which are material, may be extracted as under: "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 ex isting vacancies and the vacancies, likely to be caused during the course of the ensuring academic year, to the Director at such time and in such manner, 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 Commis sion at such time and in such manner as may be prescribed a subject wise consolidated list of vacancies intimated to him from all colleges. (4) The manner of selection of persons for appointment to the posts of teachers of a college shall be such, as may be determined by regula tions: 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, college 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-sec tion (3) of Section 12, hold interview (with or without written examination) of the candidates and send to the Director a list recommending such number of names of candidates found most suitable in each subject as may be, so far prac ticable, twenty-five per cent more than the num ber of vacancies in that subject. Such names shall be arranged in order of merit shown in the inter view, or in the examination and interview if an examination is held. (2) The list sent by the Commission shall be valid till the receipt of a new list from the Commis sion. (3) The Director shall having due regard in the prescribed manner, to the order of preference if any indicated by the candidates under the second proviso to sub-section (4) of Section 12, intimate to the management to name of a can didate 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 due 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 appoint ment in such vacancy. (5) Notwithstanding anything in the preced ing provisions, where to abolition of any post of teacher in any college, services of the person sub-stantively 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 Section 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) to the can didate concerned. " "14. Duty of Management.- (1) 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) or Section 13, issue appointment letter to the person whose name has been intimated. (2) Where the person referred to in sub-sec tion (1) fails to join the post within the time al lowed in the appointment letter or within such extended time as the management may allow in this behalf, or where such person 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. " Sub-section (2) of Section 12 re quires the management of any college to intimate to the Director the existing vacan cies and the vacancies likely to be caused during the course of the ensuing academic year. Thereafter, the Director is to notify to the Commission subject-wise consolidated list of vacancies intimated to him from all the colleges. Then the commission is to make selection after giving due publicity to the vacancies notified to it and in the man ner determined by regulations and send to the Director a list recommending such num ber of the names of the candidates found most suitable in each subject, as may be, so far as practicable, 25% more than the num ber of vacancies in that subject. The list sent by the Commission is to remain valid till the receipt of the new list from the Commission. The Director is enjoined upon the duty to intimate to the management the name of a candidate from the list having due regard to the order of preference indicated by him and thereupon the management is required to make appointment in accordance with the intimation sent by the Director. Thus, the stipulated legislative scheme is to make selection to the posts of teachers after the vacancies had been advertised consequent upon the vacancies having been notified by the Director to the Commission which vacancies had been notified earlier by the Colleges to the Director. The Act does not permit a college to appoint a teacher to fill a vacancy for which the stipulated procedure has not been followed except where a situa tion exists to which sub-section (4) of Sec tion 13 applies. Sub-section (4) provides for a vacancy which neither existed nor could be anticipated at the time prescribed under Section 12 (2) of the Act. In such situation sub-section (4) permits the Director to in timate to the management the name of a candidate from the list for appointment in such vacancy. This sub-section is in the na ture of exception designed to meet an un foreseen contingency. Undenyingly, death or resignation could not be anticipated ear lier. The words "or otherwise" occurring in sub-section (4) of Section 13 take the colour from the context in which they are used and must be construed by applying the rule of ejusdem generis. The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. This rule is fully applicable here, since it is not possible to say that the legislature after eliminating the say of the management and restricting the say of the Director to the very minimum in the entire selection process and allocation of the selected candidates to the specific in stitutions intended to open avenues of es cape by using the words "or otherwise". The words "or otherwise" imply eventuality of the same type as is converted by the words "death and resignation. "
(3.) WE, therefore, hold that an appoint ment of a teacher in any college can be made only in accordance with the manner provided in Sections 12 and 13 of the Act except where a vacancy occurs due to death, resignation or on account of some such con tingency which could not be anticipated ear lier and the vacancy caused by superannua tion is not such vacancy and is not covered by the expression "or otherwise" occurring in sub-section (4) of Section 13. Filling up of the vacancy to which sub-section (4) of Sec tion 13 is not applicable without following the procedure prescribed in Sections 12 and 13 of the Act would be in contravention of the Act and would, accordingly, be void in view of sub-section (1) of Section 12. This construction, apart from being literal, would eschew manipulation and ensure equality of opportunity to all candidates who would be eligible to apply for a vacan cy. The list sent by the Commission remains valid till the receipt of a new list from the Commission, under sub-section (2) of Section 13. This is intended to meet the situation where a selected candidate does not join the post for any reason and also to meet a contingency specified in sub section (4) of Section 13. The process of selection and appointment comes to an end after a candidate has been selected in ac cordance with the provisions of the Act and his name has been intimated to the manage ment of a college by the Director and he has been issued appointment letter, pursuant to such intimation. This process also gets ex hausted if after a candidate is selected and his name is intimated by the Director having due regard to the order of preference in timated by him fore-stalls his appointment by the management by pleading that it is not possible for him to join the college. Once the appointment process is complete there remains no occasion for him to say that on account of his personal problems he should be appointed to a vacancy for which selec tion process contemplated under the Act was not gone through. The fact that in the past recommendations were made by the Director for the vacancies which were not notified and for which stipulated selection process had not been gone through would not form the ground for our holding that the others who did not get the benefit of illegal orders should be extended similar benefits. Article 14 of the Constitution cannot be extended to legalise the illegal orders though others had wrongly got the benefit of such order. In this view we find support from Harpal Kaur Chahal v. Directory Public In structions, 1995 Supp. (4) 706. So, neither petitioner is entitled to relief.;