AMITAVA LALA, J. - (1.) THE petitioner's case is that his name was mentioned at the Serial No: 1 in the wait list prepared by the U.P. Higher Education Services Commission with reference to Advertisement No. 32. Although no vacancy was available in terms of the advertisement for the appointment of the wait listed candidate, petitioner, however, submits that subsequent vacancies in the subject concerned have become available in other colleges. He seeks appointment against these subsequent vacancies with reference to Section 13(4) of the U.P. Higher Education Services Com mission Act, 1980.
(2.) IT is admitted on record that the vacancies, which have now been caused and against which the petitioner seeks appointment, were not subject matter of Advertisement No. 32. Reliance upon Section 13(4) of the U.P. Higher Education Services Commission Act, 1980 (hereinafter referred to as 'Act, 1980') for the purposes of appointment against non-advertised vacancies is totally misconceived. Section 13(4) of Act, 1980 reads as follows: "13(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 appointment in such vacancy." The Hon'ble Supreme Court in the case of Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and others, (1998) 3 SCC 45 has considered the scope and applicability of Section 13(4) of Act, 1980 qua appointment against unadvertised vacancies and has held as follows: "Of course, the filling of vacancies under sub-section (4) of Section 13 on the vacancies already advertised arises only in case the person does not join or on account of death or resignation of person after joining, becomes invalid or such unforeseen circumstances. In other words, all the circumstances have to be within the vacancies already advertised and not beyond it. The sphere of sub-section (4) of Section 13 is within the vacancies for which the Commission took interview or the examination, as the case may be, under sub-section (1) of Section 13. Sub-section (2) which says that the list so prepared shall be valid till the receipt of a new list from the Commission only means that in case there is delay in the next new list and any vacancy occurs on account of the unforeseen reason within the vacancies advertised, the said vacancy can be filled up under sub-section (4) of Section 13. The list would not come to an end after a period of one year, as was earlier, and would continue for a limited purpose as explained above till the selection in the next academic year in question is made and recommendations are sent with a fresh list." (Emphasis applied)
(3.) THEREFORE , we are of the view that the appointment which is being prayed for by the petitioner against the vacancies which were not subject matter of advertisement and, therefore, outside the scope of Section 13(4) of the Act, 1980 is totally misconceived and has to be rejected. As a result whereof the writ petition is dismissed,;