Allahabad High Court
Dr. Radhey Shyam Sharma vs Director (Higher Education) And Ors. on 2 December, 2002
Equivalent citations: 2003(1)AWC17
Author: M. Katju
Bench: M. Katju, K.S. Rakhra
JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order of the Director (Higher Education) U. P. dated 1.7.2002 Annexure-6 to the writ petition and consequential order dated 5.7.2002 Annexure-7. The petitioner has also prayed for a mandamus directing the respondents not to interfere with his functioning as Officiating Principal of Saraswati Mahavidyalaya, Hathras, which is a Post-graduate Degree College affiliated to Dr. Bhim Rao Ambedkar University, Agra.
2. We have heard counsel for the parties. By the impugned order Annexure-6 to the petition, the Director (Higher Education) has directed that respondent No. 4 Satya Prakash Stngh Chauhan be appointed as Principal of the aforesaid college.
3. A vacancy on the post of Principal of the aforesaid college occurred on the superannuation of the earlier Principal Sri R. Mohan on 30.6.1998. The petitioner being the seniormost teacher in the College was appointed as officiating Principal in accordance with the relevant statutes and was working as such till the passing of the impugned order, i.e., for more than 4 years (except for a short period from 9.7.2001 to 11.8.2001 when Dr. Shree Ram Verma was the Principal).
4. It appears that respondent No. 4 had applied against advertisement No. 23 issued by the U. P. Higher Education Service Commission and was selected by the Commission against that advertisement. In the counter-affidavit of respondent No. 4, it has been stated in paragraph 7 that by an order of the Director dated 23.3.2000, the said respondent No. 4 was recommended for appointment as Principal of D. V. Post Graduate College, Orai, District Jalaun, vide Annexure-C.A. 2 but for reasons given in paragraphs 8 to 11 of the counter-affidavit, he could not join. Thereafter the Director passed an order dated 4.7.2000 recommending the name of respondent No. 4 for appointment as Principal of Agrasen College, Sikandarabad, Bulandshahr vide Annexure-C.A. 5, but he did not join there also as stated in paragraph 13 of the counter-affidavit. Thereafter the Director passed two orders dated 15.7.2000 recommending that the petitioner be appointed as Principal of Chitragupta Mahavidyalaya, Mainpuri, vide Annexures-C.A. 6 and C.A. 7, but the Committee of Management of that college did not Issue a letter of appointment to the respondent No. 4 and did not permit him to join. The posts of Principal in the aforesaid 3 colleges had been advertised in advertisement No. 23, but the post of Principal of Saraswati Mahavidyalaya, with which we are concerned in the present case, was not advertised in advertisement No. 23.
5. As stated in paragraph 7 of the petition advertisement No. 25, dated 13.8.1998 was issued by the Commission in which the post of Principal of Saraswati Mahavidyalaya, Hathras was advertised and the respondent No. 4 had been appointed against the said post by the impugned order which is under challenge in this petition.
6. In our opinion, this writ petition deserves to be allowed on the short point that respondent No. 4 was illegally appointed as Principal of Saraswati Mahavidyalaya, Hathras since he had never applied against advertisement No. 25 but he had applied only against advertisement No. 23 in which the post of Principal, Saraswati Mahavidyalaya, Hathras was not mentioned.
7. It has been held by the Supreme Court in Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors., (1998) 3 SCC 45, vide paragraph 13, that a person cannot be appointed against a vacancy to which he had not even applied. It has nowhere been alleged by respondent No. 4 in his counter-affidavit that he applied against advertisement No. 25. When respondent No. 4 had not even applied for the post of Principal of Saraswati Mahavidyalaya, Hathras, we fail to understand how he can be appointed on that post. In our opinion, a person can be appointed as Principal of a college for which he has applied. Since the respondent No. 4 never applied against advertisement No. 25, his appointment as Principal of Saraswati Mahavidyalaya was, in our opinion, wholly illegal.
8. Learned counsel for respondent No. 4 has invited our attention to Section 13 (4) of the U. P. Higher Education Service Commission Act, 1980 and has placed reliance on the Division Bench decision of this Court in M. C. Yadav v. Director of Education, 2001 (2) AWC 1383 : 2001 (2) UPLBEC 1345. In our opinion, this decision is wholly distinguishable since the petitioner in M. C. Yadau's case had applied against the advertisement in which the College in question was mentioned, whereas in the present case the petitioner did not apply against advertisement No. 25.
9. The writ petition is, therefore, allowed. The impugned order dated 1.7.2002 (Annexure-6 to the writ petition) and the consequential order dated 5.7.2002 (Annexure-7 to the writ petition) are hereby quashed. The petitioner is permitted to work as Officiating Principal of Saraswati Mahavidyalaya, Hathras, until a valid selection is made by the U. P. Higher Education Services Commission.