JANARDAN SAHAI,Y.K.SANGAL,J - (1.) DR . Rama Shanker Rai, peti­tioner in Civil Misc. Writ Petition No. 17788 of 2009 was selected by the U.P. Higher Education Services Commission, Allahabad (hereinafter referred as the 'Commission') for the post of Principal in Post Graduate College. It appears that the petitioner had given an option for his placement before the Commission. In the list of choice he had given the name of Feroze Gandhi Post Graduate College, Raebarelly at Serial No. 3 and that of Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad at Serial No. 4. It appears that Dr. Narendra Kumar, who was higher up in the merit list as against the peti­tioner, was given placement at Feroze Gandhi Post Graduate College, Raebarelly. The petitioner was, therefore, given placement at Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad. Later the Committee of Management, Lajpat Rai Post Graduate College, Sahibabad, Ghaziabad filed Civil Misc. Writ Petition No. 22815 of 2009 challenging the placement of the petitioner in its college on various grounds. Their case is that they are not ready to take the petitioner in their institution as the petitioner is not a desir­able candidate as there are some disciplinary proceedings pending against him in D.A.V. Post Graduate College, Gorakhpur, where the petitioner was work­ing. It is also said that no proper 'No objection Certificate' had been taken by the petitioner from the Manager of D.A.V. Post Graduate College, Gorakhpur.
(2.) IT appears that subsequently Dr. Narendra Kumar Singh resigned and the petitioner claims for being given placement in Feroze Gandhi Post Graduate College, Raebarelly, as he was one of the selected candidates in the panel and none s higher to the petitioner in merit who may have opted for Feroze Gandhi Post Graduate college, Raebarelly. Indeed, on this point, learned Counsel for the petitioner and learned Standing Counsel are on common ground. The petitioner had filed Writ Petition No. 34920 of 2008 (Rama Shanker Rai v. State of U.P. and another). In pursuance of certain directions made in that writ petition a policy was prepared by the Director of Higher Education regarding the placement of the selected candidates. The learned Standing Counsel relies upon Clause (e) of the policy, which is quoted below :- "(e) That in case no advertised vacancy is available for the last one or some candidates, the Director, Higher Education is not bound to give place­ment unless under section 13 (4) the vacancy becomes available again. Placement under section 13 (4) shall be made strictly in accordance with the merit amongst the left-over candidates of the selected list." Section 13 (4) of the U.P. Higher Education Service Commission Act, 1980, reads as under :- "13. Recommendation of Commission :- (1) ..... (2) ..... (3) ..... (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 Commissions 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."
(3.) A Division Bench of this Court has held in the case of Dr. M.C. Gupta v. Director, Higher Education, U.P. and others, 2001 (2) UPLBEC 1435. that where a non-scheduled vacancy contemplated in sub-rule (4) occurs, the post can be filled up from the panel of the selected candidates.;