of U.P. & Anr Vs.
Nidhi Khanna & Anr  Insc 554 (11 May 2007)
C.K. Thakker & P.K. Balasubramanyan
CIVIL APPEAL NO. 2442 OF 2007 (Arising out of S.L.P. (C) No. 10984 of 2004)
C.K. Thakker, J.
1. Leave granted.
2. This appeal is directed against the judgment and order passed by the
Division Bench of the High Court of Judicature at Allahabad on March 15, 2004
in Civil Miscellaneous Writ Petition No. 45418 of 2003. By the said judgment,
the High Court directed the appellants to give an appointment letter to
respondent No. 1 (writ petitioner) for the post of Lecturer in Geography in
Degree College, Allahabad 'forthwith'.
3. Short facts giving rise to the present appeal are that in June, 2000,
Uttar Pradesh Higher Education Services Commission ('Commission' for short)
advertised under Advertisement No. 29, vacancies of Lecturers in different
non-Government Degree (P.G.) Colleges. In pursuance of the said advertisement,
respondent No. 1 (writ petitioner) applied for the post of Lecturer in Geography
in August, 2000. A Select List was prepared on July 19, 2001.
Respondent No. 1 was declared selected, but her name was placed at Serial
No. 1 in the Wait-List of General Category candidates. It is the case of the
appellants that the Director of Higher Education, U.P., Allahabad, appellant
No. 2, herein issued an order on November 23, 2002 by which respondent No. 1
was appointed as Lecturer in Geography in R.G. Girls College, Meerut.
According to the appellants, however, respondent No. 1 did not join at Meerut
College and hence another candidate was appointed and placement of respondent
1 was cancelled. On March 5, 2003, another merit list was prepared pursuant
to Advertisement No. 32 and names of selected candidates were received by the
Director on March 7, 2003. On July 3, 2003, respondent No. 1 met the Director
and stated that though she was selected as Lecturer in Geography and was placed
at Sr. No.1 in Wait- List, she had not received a Letter of Appointment.
Respondent No. 1 also stated to the Director that there was a vacancy in C.M.P.
Degree College, Allahabad and the said College had no objection to appoint
respondent No. 1. She, therefore, prayed that she be appointed in C.M.P. Degree
College, Allahabad. The prayer was, however, rejected by the appellants on the
ground that new list was prepared in March, 2003 under Advertisement No. 32.
Respondent No. 1 was selected under Advertisement No. 29, but the said list had
lapsed as it was valid only till new list was prepared. Hence, even though C.M.P.
College, Allahabad had no objection for appointment of respondent No. 1, she
could not be appointed after the new list was prepared. This led respondent No.
1 to filing of writ petition. It was her case in the petition that she had
never received any order or communication about her appointment as Lecturer in
Geography in Meerut College nor was she informed about her placement in that
college. Though the appellants herein filed an affidavit controverting the
assertion of respondent No. 1 (writ petitioner), the Court held that stand of
the Authorities was not tenable and they were responsible for not giving
appointment to respondent No.
1 and had acted arbitrarily. Since respondent No. 1 (writ petitioner) was
selected by the Commission and was wait- listed and as there was vacancy of
Lecturer in Geography in C.M.P. Degree College, Allahabad, the petition was
allowed and a Writ of Mandamus was issued directing the authorities to appoint
respondent No. 1 in C.M.P. Degree College, Allahabad 'forthwith'.
4. The above order is challenged by the Authorities by filing the present
appeal. On July 14, 2004, notice was issued and interim stay was granted
against the order of the High Court. Affidavits and further affidavits are
filed thereafter. Considering the controversy and interim order passed by this
Court, direction was issued to the Registry to place the matter for final
hearing and that is how the matter has been placed before us.
5. The learned counsel for the appellants contended that the High Court has
committed an error of law in directing the Authorities to appoint respondent
No. 1 forthwith in C.M.P. Degree College, Allahabad. It was submitted that once
new select-list was prepared in March, 2003, the old list came to an end and no
appointment could be made from that list. It was also submitted that according
to the appellants, respondent No. 1 was intimated that she was appointed in Meerut
College, but she did not join the said college and hence another person was
appointed. She, therefore, had no occasion to make any grievance. The order
passed by the High Court, therefore, deserves to be set aside by ordering
dismissal of the petition filed by respondent No. 1 (writ petitioner).
6. The learned counsel for respondent No. 1, on the other hand, supported
the order of the High Court. He submitted that admittedly respondent No. 1 was
selected by the Commission. She was at Serial No. 1 in the Wait- List. It was,
therefore, incumbent on the Authorities to consider her claim when a case for
appointment of a candidate from wait-list arose. She had never received any
communication/order that she was appointed in Meerut College and it was only in
July, 2003 that the Director told her that she did not joint at Meerut College.
She, therefore, made a prayer to allow her to join in C.M.P. College, Allahabad
and also obtained no objection certificate from the said college. Respondent
No. 1 had thus suffered without there being any fault on her part.
The High Court, in the circumstances, was right in directing the Authorities
to give her appointment in Allahabad College and the said order requires no
7. Having heard the learned counsel for the parties, in our opinion, the
High Court was not justified in issuing a Writ of Mandamus directing the appellants
to appoint respondent No. 1 (writ petitioner) as Lecturer in Geography in C.M.P.
Degree College, Allahabad.
8. Before we consider the rival contentions of the parties, it would be
appropriate if we refer to the statutory provisions. In 1980, an Act has been
enacted known as the Uttar Pradesh Higher Services Commission Act, 1980
(hereinafter referred to as "the Act"). The Preamble of the Act
declares that it had been enacted with a view "to establish a Service
Commission for the selection of teachers for appointment to the colleges
affiliated to or recognized by a University or for matters connected therewith
or incidental thereto". "Commission' is defined as the Higher
Services Commission established under Section 3. Chapter II deals with
establishment of Commission, its composition, terms of office and conditions of
service, etc. Chapter III enumerates functions of the Commission and its powers
Sections 12 and 13 as then stood are material and may be re-produced;
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 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 Commission at such time and in such
manner as may be prescribed a subject wise consolidated lit 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 regulations:
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
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 a 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 shown in the
interview, or in the examination and interview if any examination is held.
(2) The lists 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 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 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 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.
(5) Notwithstanding anything in the proceeding provisions, where abolition
of any post of teacher in any college, services of the persons 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 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) or sub- section (4) or sub-section (5) to the Candidate concerned.
9. Section 14 imposes a duty on the management to appoint teachers pursuant
to the order passed by the Director. Section 15 empowers Director to get
information from the Management so as to enable him to take an appropriate
action. The Commission is also authorized to call for information from the
Management of any college as it thinks fit. It also has power to inspect
records and registers of the Management.
10. It is the case of the appellants that appellant No. 2, Director of
Higher Education informed respondent No. 1 as also R.G. College, Meerut on
November 23, 2002 that a vacancy had arisen in the said college, of Lecturer in
Geography due to non-joining by one Ku. Shradha Shrivastava. It was, therefore,
decided to appoint Ku.
Nidhi Khanna, (respondent No. 1 herein : writ petitioner) pursuant to the
recommendation made by the Commission under sub-section (4) of Section 13 of
the Act. The Management was, therefore, directed to issue an order of
appointment by registered post within thirty days from the date of receipt of
the letter appointing respondent No. 1 as Lecturer in Geography in the said
Likewise, respondent No. 1 also was informed by the Authorities by a
registered letter. It is no doubt true that according to respondent No. 1, she
had not received any such letter, but even in the High Court, the case of the
appellants was that the letter was sent by registered post to respondent No. 1
at the address supplied by the candidate, i.e. respondent No. 1, but she did
not join Meerut college. It was, in these circumstances that another person
came to be appointed. It was, therefore, submitted that respondent No. 1 had no
right to insist for appointment after the new list was prepared.
11. The learned counsel for the appellants, in this connection, referred to
a decision of this Court in State of Bihar & Anr. v. Madan Mohan Singh
& Ors., (1994) Supp (3) SCC 308. A three-Judge Bench of this Court there
held that a select list prepared for filling up of vacancies would be valid for
filling up of those vacancies for which it was prepared. For other vacancies,
fresh list will have to be prepared and no appointment could be made from the
list prepared for vacancies not advertised. In Madan Mohan Singh, applications
were invited by the Government for filling up of 32 vacancies of Additional
Sessions Judges against direct recruitment quota. A list of 128 candidates
(32x4=128) was prepared, but since last two candidates secured equal marks,
names of both were included at Sl. No. 128 and 129. The High Court conducted
oral interview and a panel of 32 candidates was prepared. Selected candidates
were asked to appear for Medical Test on March 2, 1991. The Full Court,
however, sought to include further vacancies as well and decided to fill up
those vacancies that arose subsequently, from the merit list which was already
prepared. This Court held the action of the High Court invalid as no
appointment could be made from a list in respect of vacancies that arose
12. A question similar to the one which we are called upon to decide, came
up for consideration before this Court as to interpretation of Sections 12, 13
and 14 of the Act in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta & Ors.,
(1998) 3 SCC 45 : JT (1998) 1 SC 642. In Kamlesh Kumar, an advertisement was
issued on April 20, 1992 by the Commission for certain vacancies of Principals.
The appellant applied for the said post and was included in the Select List.
Due to certain reasons, however, he could not be appointed. On July 1, 1993, a
post of Principal in one college fell vacant on account of retirement of the
incumbent thereof. The Director of Higher Education purportedly exercising
power under sub-section (4) of Section 13 of the Act directed the Management of
the College to appoint the candidate who was in the Select List as the
Principal. The action was challenged. It was contended that no appointment
could have been made as the advertisement was issued on April 20, 1992 and the
post of Principal fell vacant on July 1, 1993. The Authorities, on the other
hand, contended that the word 'otherwise' occurring in Section 13(4) of the Act
should not be read ejusdem generis and was wide enough to cover and take within
its sweep all vacancies including the vacancies for which interview might not
have been held. After quoting the relevant provisions of the Act, this Court
stated; "Having heard learned counsel for the parties and having gone
through the relevant Act and the Rules, we find that the aforesaid amendments
were brought in to eliminate ad hocism and irregular appointment of teachers.
This is also to eliminate favourtism, nepotism and other processes, through which
unqualified, undesirable persons were appointed excluding meritorious teachers.
The proviso to sub-section (4) of Section 12 provides for wide publicity
through advertisement for inviting talented persons for filling up such
vacancies, as notified under sub-section (3). This was keeping in mind that
whenever such vacancy occurs selection should be from a larger sphere through
wide advertisements which would include large applicants competing. Both, ad
hoc appointment and appointment made for any vacancy not properly advertised
limits sphere where it may either as under the old Act to be regularised or
under the principle of equity, sympathy to be regularised if a case be made out
which erodes the very foundation of a teaching institution by lowering the teaching
13. The Court observed;
We find, after giving our careful consideration that in case the appellant's
argument is accepted by giving wider interpretation to the word
"otherwise", it would thwart the very object of the Act. In other
words it would permit the filling of the vacancy occurring which was never
advertised and a person in the select list panel, even though not applying for
any vacancy, would be absorbed. Hence it would be limiting the sphere of
selection in contradiction to the object of the provision to draw larger
applicants by advertising every vacancy to be filled in. We have no hesitation
to say that any appointment to be made on a vacancy occurring in the succeeding
year in question for which there is no advertisement under the provisions of
sub-section (4) of Section 12, the person on the panel list of preceding
academic year in question, cannot be absorbed or be appointed. The word
"otherwise" has to be read as ejusdem generis that is to say in group
similar to death, resignation, long leave vacancy, invalidation, person not
joining after being duly selected. In other words, it would be a case of
unforeseen vacancies which could not be conceived under Section 12(2). Section
12(2) conceives of a vacancy which is existing on the date the vacancy is to be
advertised and which is likely to be caused in future but constricted for a
period ending in the ensuing academic year in question.
The words "likely to be caused" under Section 12(2) are followed
by the words "during the course of the ensuing academic year" that is
any person likely to retire by the end of the academic year in question. In
other words, such vacancies could be foreseen and not unforeseen. While
vacancies under Section 13(4) are unforeseen vacancies which fall under the
group, death and/or resignation. Hence the word "otherwise"
cannot be given the wide and liberal interpretation which would exclude
large number of expected applicants who could be waiting to apply for the
vacancies occurring in the succeeding year in question.
14. In our opinion, in view of the above legal position, the appellants were
right in their submission that respondent No. 1 could not be appointed in
pursuance of Advertisement No. 32 since she was selected and empanelled
pursuant to Advertisement No. 29.
15. The learned counsel for respondent No. 1 contended that there was no
fault on her part. It was also stated that though the Authorities asserted that
a communication was sent to respondent No. 1 at the address supplied by her,
she had never received such so- called communication. It was also urged that
the address at which the communication was sent was not correct address. It was
only because of the fact that there was no communication by the Director of
Higher Education that constrained respondent No. 1 to approach him as to what
had happened to her appointment though she was at Serial No. 1 in the
Wait-List. Only at that time she was informed about the order of appointment
and her placement in Meerut College but since she did not join duty, other
person was appointed. Precisely because of subsequent development that
respondent No. 1 approached C.M.P. College, Allahabad and obtained 'No
Objection Certificate' from the Management of that College. The High Court,
submitted the counsel, believed the case of respondent No. 1 and granted relief
observing that it was the mistake of the Authorities for which the candidate
should not suffer.
16. Without expressing final opinion as to correctness or otherwise as to
assertion of respondent No.
1, even if it is believed that what respondent No. 1 contended before the
High Court and before us is correct, in our considered opinion, no writ of
Mandamus could have been issued by the High Court in the light of express and
unequivocal statutory provisions referred to hereinabove and the declaration of
law in Kamlesh Kumar Sharma.
17. It is an admitted fact that the first respondent was selected and
empanelled in the Wait List pursuant to Advertisement No. 29 on July 19, 2001. It is further not disputed that Advertisement No. 32 was thereafter issued
and Merit List was prepared on March 5, 2003 which was received by the Director
on March 7, 2003. Once the above facts have been established, the statutory
provisions will come into play. Under the said provisions as soon as the new
list is prepared, the old list comes to an end. The High Court, in view of the
above facts, in our considered opinion, could not have issued a writ of
Mandamus directing the Authorities to act contrary to law. That is not the ambit
and scope of writ of Mandamus.
18. For the foregoing reasons, the appeal deserves to be allowed and is
allowed accordingly. The order passed by the High Court is set aside and the
writ petition filed by the writ petitioner (respondent No. 1 herein) is ordered
to be dismissed. In the facts and circumstances of the case, however, there
shall be no order as to costs.
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