Sanjay Prakash Dubey vs State Of U.P. And 3 Others
2023 Latest Caselaw 27394 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:192785
 
Court No. - 35
 

 
Case :- WRIT - A No. - 13104 of 2023
 

 
Petitioner :- Sanjay Prakash Dubey
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shivendu Ojha,Sneh Pandey,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

Hear Sri Shivendu Ojha, learned counsel for the writ petitioner. Sri Shailendra Singh learned Standing Counsel for the respondents no. 1, 2 & 3.

This Court while entertaining the writ petition on 10.8.2023 while seeking response from the respondents had issued noticed to the fourth respondent.

There is an office report dated 18.8.2023 that steps have been taken for service upon fourth respondent fixing 6.9.2023. On 5.9.2023 there is a fresh service report that delivery of the notice is confirmed to the respondent no.6. However since there was discrepancy so afresh service report has been submitted on 6.10.2023 that the service is confirmed upon respondent no.4. Till the dictation of the order nobody has appeared on behalf of the fourth respondent thus this Court is treating service upon the fourth respondent as sufficient.

The case of the writ petitioner is that the U.P. Higher Education Service Commission published an advertisement no.46 with regard to recruitment on the post of the Assistant Professor (English) and the writ petitioner claims to have applied thereon and he was selected as Assistant Professor (English) in St. Tulsi Das Post Graduate College, Kadipur, District Sultanpur and he assumed the charges in the said institution on 8.12.2018. According to the writ petitioner thereafter another advertisement no.50 was published by the U.P. Higher Education Service Commission and the writ petitioner again applied for the post of Assistant Professor (English). On 2.3.2023 the letter has been issued whereby the writ petitioner has been accorded placement in Shri Ganesh Rai Snatkottar Mahavidyalaya, Dobhi, Jaunpur.

As per the writ petitioner when on 2.7.2022 the select list were published the name of the writ petitioner found place at serial no.3 in the waiting list. According to the writ petitioner since several incumbent failed to join the post in question, the claim of the writ petitioner was considered and the petitioner was accorded placement in the institution Shri Ganesh Rai Snatkottar Mahavidyalaya, Dobhi, Jaunpur. It is further the case of the writ petitioner that he had exercised option wherein he had given first option Dugvuhat Nath Mahvidyalaya, Gorakhpur, second in BRDPG College, Deoria and third Mahavidyalaya Bhatwali Bazar, Unwal, Gorakhpur.

Pleadings further reveal that assertions have been made by the writ petitioner in para 13 that one Ms. Anjali Modanwal who was placed in the select list dated 2.7.2022 at serial no. 38 was accorded placement in Mahavidyalaya Bhatwali Bazar, Unwal, Gorakhpur, fourth respondent but she did not join and she approached the State Government for according transfer to her and thereafter an order was passed on 9.12.2022 whereby she was accorded placement in Devendra P.G. College, Belthara Road, Ballia.

According to the writ petitioner since nobody had joined in the fourth respondent institution and incumbent who was at serial no.38 had been accorded placement in other institution so the writ petitioner preferred representation dated 20.12.2022 before the Director of Education (Higher) for according placement in the fourth respondent institution. Alleging non disposal of the same the writ petitioner preferred Writ-A No.7971 of 2023, Sanjay Prakash Dubey vs. State of U.P. and 3 others which came to be disposed of on 23.5.2023 by this court while passing the following order:-

"Heard learned counsel for the parties.

The petitioner before this Court has been selected by Higher Education Service Commission on the post of Assistant Professor in a post graduate college pursuant to the advertisement no.50.

It is submitted by learned counsel for the petitioner that one Anjali Modanwal was selected for the college Mahavidyalaya Bhatwali Bazar, Unwal, Gorakhpur but she has finally been adjusted at Devendra Post Graduate College, Belthara Road, Ballia.

Now the claim of the petitioner is that since he has been selected and given offer of appointment from the waiting list and the college in question namely, Mahavidyalaya Bhatwali Bazar, Unwal, Gorakhpur was third choice of the petitioner, his candidature should be considered in respect of the said institution. He submitted that in the above regard, petitioner has already approached the Director of Higher Education by filing representation dated 21.12.2022 served in the office of the Director of Higher Education, Prayagraj, Uttar Pradesh on 21.12.2022, the same may be directed to be considered in accordance with law.

Learned Standing Counsel submits that he has no objection in the event matter is directed to be disposed of at the end of the Director of Higher Education.

In view of the above, this petition stands disposed of with direction to the Director of Higher Education to look into and consider the claim of the petitioner raised in his representation dated 21.12.2022 and pass appropriate order as expeditiously as possible, preferably within a period of three weeks from the date of presentation of certified copy of this order.

Needless to add the order to be passed shall be reasoned and speaking one after giving opportunity of hearing to the concerned parties."

Thereafter the writ petitioner claims to have preferred representation which according to the writ petitioner has been rejected on 3.7.2023.

Questioning the order dated 3..7.2023 passed by the second respondent, the Director of Higher Education, U.P. Prayagraj, the writ petitioner has filed the present writ petition. This Court entertained the writ petition on 10.8.2023 while passing the following orders:-

"Since, a writ of certiorari has been sought challenging the order dated 03.07.2023, whereby the writ petitioner has not been accorded placement in the fourth respondent's institution, despite the fact that the vacancy is already there and he can be adjusted in the said institution and reliance has been placed upon the judgment in case of Writ - A No. 6972 of 2023 (Khusboo Singh vs. State of U.P. and 5 Others), decided on 09.05.2023, let a response be filed by the learned Standing Counsel, who appears for respondent nos.1, 2 and 3.

Learned counsel for the writ petitioner shall take steps for service of notice upon the fourth respondent by 16.08.2023 by both ways.

Put up this case on 06.09.2023, as fresh.

Affidavit of service be filed by the next date.

All the respondents shall file their response before the next date fixed."

Thereafter on 6.9.2023 and 28.9.2023 this Court passed the following orders:-

This Court on 10.08.2023 had entertained the writ petition, while seeking response from the respondents and issuing notice to the fourth respondent.

Order-sheet reveals that on 18.08.2023, notices were issued and on 05.09.2023, the order-sheet further reveals that notice upon the fourth respondent is confirmed.

Sri R.K. Ojha, learned Senior Counsel for the petitioner has made a statement at Bar that the petitioner has taken steps for service upon the fourth respondent. He shall be filing the affidavit of service before the next date fixed.

Sri Pradeeh Kumar Shahi, learned Additional Chief Standing Counsel seeks ten days' time to file counter affidavit.

Counter affidavit be served upon the learned counsel for the writ petitioner by 16.09.2023.

Thereafter, rejoinder affidavit be filed by 19.09.2023.

Put up this case on 20.09.2023, as fresh."

On 20.9.2023 :-

"On 10.08.2023, this Court had passed the following order:

Since, a writ of certiorari has been sought challenging the order dated 03.07.2023, whereby the writ petitioner has not been accorded placement in the fourth respondent's institution, despite the fact that the vacancy is already there and he can be adjusted in the said institution and reliance has been placed upon the judgment in case of Writ - A No. 6972 of 2023 (Khusboo Singh vs. State of U.P. and 5 Others), decided on 09.05.2023, let a response be filed by the learned Standing Counsel, who appears for respondent nos.1, 2 and 3.

Learned counsel for the writ petitioner shall take steps for service of notice upon the fourth respondent by 16.08.2023 by both ways.

Put up this case on 06.09.2023, as fresh.

Affidavit of service be filed by the next date.

All the respondents shall file their response before the next date fixed."

Thereafter on 06.09.2023, the following order was passed:

"This Court on 10.08.2023 had entertained the writ petition, while seeking response from the respondents and issuing notice to the fourth respondent.

Order-sheet reveals that on 18.08.2023, notices were issued and on 05.09.2023, the order-sheet further reveals that notice upon the fourth respondent is confirmed.

Sri R.K. Ojha, learned Senior Counsel for the petitioner has made a statement at Bar that the petitioner has taken steps for service upon the fourth respondent. He shall be filing the affidavit of service before the next date fixed.

Sri Pradeeh Kumar Shahi, learned Additional Chief Standing Counsel seeks ten days' time to file counter affidavit.

Counter affidavit be served upon the learned counsel for the writ petitioner by 16.09.2023. Thereafter, rejoinder affidavit be filed by 19.09.2023.

Put up this case on 20.09.2023, as fresh."

Put up this case as fresh on 27.09.2023. In the meantime, the respondents shall seek instructions/ file affidavit. In case, affidavit is not forthcoming on that date, this Court will summon the officers concerned."

Counter affidavit has been filed on behalf the respondents no. 2 and 3 sworn by Assistant Director in the Office of the Director Higher Education, Prayagraj dated 26.9.2023 (wrongly typed as 26.9.2022) to which a rejoinder affidavit has been filed.

Learned counsel for the petitioner while assailing the order dated 3.7.2023 passed by the second respondent, Director of Higher Education, Prayagraj has submitted that the entire exercise sought to be undertaken while negating the claim of the writ petitioner is per se illegal for the simple reason that there existed various vacancies which remain unfilled though advertised and thus the writ petitioner claim deserved to have been considered in that regard. He further submits that as per the respondent themselves one Ms. Anjali Modanwal, who was at serial no. 38 in the select list dated 2.7.2022 was accorded placement in the fourth respondent institution but she did not join the post and as per the impugned order in question she has been accorded joining in an institution by the name of Handiya P.G. College, Prayagraj. It is the further stand of the writ petitioner that the name of the writ petitioner finds place in the waiting list and in the wake of the fact that the life of the select list as per the Section 13(2) of the U.P. Higher Education Service Commission Act is till the receipt of the new list from the Commission, the writ petitioner is entitled to be accorded placement as it is not the case of the respondents in the impugned order or in the counter affidavit that a new list has been prepared. Further submission of the learned counsel for the petitioner is that though seemingly the placement of Ms. Anjali Modanwal on a unadvertised post is illegal but the writ petitioner is not questioning the said exercise, however the writ petitioner is limiting his relief for adorning the said vacancy while according to posting to her.

Learned counsel for the writ petitioner further submits that the ground which have been sought to be taken in the order impugned referable to the order dated 7.1.2022 and 9.12.2022 was noticed and discussed and rather interpreted in Writ - A No. 6972 of 2023 (Khusboo Singh vs. State of U.P. and 5 Others), wherein this Court passed the following orders:-

"1. Learned Standing Counsel has obtained instructions in the matter which are taken on record, a copy whereof is also supplied to learned counsel for the petitioner.

2. In order to address the issue raised in this petition and elaborated in my order dated 21.04.2023 the Director of Higher Education has come up with a stand that State Government has converted the post of Assistant Professor at Vidyant Hindu Mahavidyalaya, Lucknow to adjust Dr. Shilpi Chaudhary, even though she was originally selected and recommended for appointment at Brahmavart Degree College, Mandhana, Kanpur Nagar for which the petitioner had given his second preference.

3. As a matter of fact the Institution namely Vidyant Hindu Mahavidyalaya, Lucknow was not subject to advertisement pursuant to which the selection of both Dr. Shilpi Chaudhary and the petitioner was made. Petitioner being in the waiting list was not originally empaneled for being recommended to be appointed, however, since candidates on merit did not turn up to join, the Director of Higher Education proceeded to utilize the waiting list prepared by the Commission. Petitioner in his option had given preference to Acharya Narendra Dev Nagar Nigam Mahila Mahavidyalaya, Kanpur but he was not offered the Institution of his first choice and was offered one Narayan College, Shikohabad, Firozabad. Since, Dr. Shilpi Chaudhary came to be adjusted by the State in its own discretion at Vidyant Hindu Mahavidyalaya, Lucknow, the advertised vacancy in respect of Brahmavart Degree College, Mandhana, Kanpur Nagar remained unfilled and so resultantly petitioner applied for consideration of his candidature for the said Institution.

4. It appears that prior to passing of the impugned order rejecting the claim of the petitioner on 24.03.2023 the Joint Director of Higher Education wrote a letter to the State Government that since the post of Assistant Professor at Vidyant Hindu Mahavidyalaya, Lucknow has been made available to adjust Dr. Shilpi Chaudhary and the said post was not subject to advertisement, so on account of such adjustment, no further candidate should be recommended from the waiting list against the post of Brahmavart Degree College, Mandhana, Kanpur Nagar as it would amount to making appointment on vacancies exceeding the total number of vacancies which were advertised and that would not be proper. From the instructions it is clear that pursuant to the directions issued by the Special Secretary, Government of U.P., a letter got issued by the Director of Higher Education on 09.12.2022 de-listing the Institution namely Brahmavart Degree College, Mandhana, Kanpur Nagar from the advertisement no. 50 and so the consequential impugned order has come to be passed. It is really a question to be gone into that once the post has come to be advertised by the Higher Education Services Commission as per the provision contained under the Commissions Act and the selection process has been completed, whether such a post can be de-listed.

5. Besides above, in my considered view, once the post has come to be advertised and selection has been made, unless and until the merit list including the waiting list either gets exhausted or loses its life, an already advertised posts cannot be taken out of that bucket. While the Government may have discretion to direct for adjustment of a selected candidate against a vacancy of an Institution which was not advertised, the Government would certainly not have discretion to close the opportunity of a candidate in merit to be offered appointment against a vacancy of his/ her preferential choice, already advertised/ subject to selection and available.

6. Learned Standing Counsel as well as learned counsel for the Commission could not cite any provision of law or any authority to support the order dated 07.12.2022 and the consequential order dated 09.12.2022 and also the order impugned passed by the authority.

7. On a pointed query being made to learned Standing Counsel as to under which law, rule or regulation this power has come to be exercised by the State Government to convert an unadvertised vacancy into the category of advertised vacancy to adjust Dr. Shilpi Chaudhary and then to take a stand that already advertised vacancy will be taken out of the advertised vacancy category, learned Standing Counsel just relied upon the instructions.

8. From the instructions nothing new can be inferred. The legal position will not get altered just for the discretion exercised by the State Government. If the State Government was going to adjust any selected candidate against a vacancy which was not subject matter of advertisement, then that discretion would not automatically result in an already advertised vacancy to be treated as not one of the advertised vacancies so as to ensure that number of total advertised vacancy does not get increased. This logic neither appear judicious, nor is supported by any law.

9. The post of Assistant Professor of College namely Brahmavart Degree College, Mandhana, Kanpur Nagar if is offered to the petitioner then in turn the similary vacancy of Narayan College, Shikohabad, Firozabad would remain vacant and that vacancy can be adjusted against new advertisement and the State Government in its discretion can equally do so taking the case of Dr. Shilpi Chaudhary as precedent. The petitioner, in the considered view of the Court cannot be denied the post of Assistant Professor in an Institution which has been his second preference choice.

10. In such above view of the matter therefore, the order impugned passed by the authority dated 24.03.2023 cannot be sustained and the same is hereby quashed. The Court takes also the judicial notice of the order dated 07.12.2022 passed by the State Government and the consequential order dated 09.12.2022 passed by the Director, Higher Education and the same are also quashed to the extent of institution namely Brahmavart Degree College, Mandhana, Kanpur Nagar for the same reason. Respondents are directed to offer post of Assistant Professor to the petitioner at Brahmavart Degree College, Mandhana, Kanpur Nagar and in turn may in its discretion, if so advised and otherwise if permissible in law may keep the vacancy at Narayan College, Shikohabad, Firozabad as one of the vacancies which may be subject matter of future advertisement.

11. With these observations and directions, this petition stands allowed.

12. There will be no order as to cost."

He thus, submits that in absence of any plausible explanation sought to be offered by the respondents either in the counter affidavit or depicted in the impugned order that the post in question cannot be de-listed and further until and unless the waiting list is exhausted the petitioner cannot be accorded placement. The order impugned cannot be sustained. He further submits that the order is set aside and the matter be remitted back.

Sri Shailendra Singh, learned Standing Counsel who appears for the State respondents has invited the attention of the Court towards paragraph 7 of the counter affidavit so as to contend that since there is no provision in the Act for making placement by giving consideration to family problems as such the State Government under special circumstances had directed for placement of Ms. Anjali Modanwal in unadvertised post of unreserved category at Handia P.G. College, Handia Prayagraj and the placement of Ms. Anjali Modanwal was made against unadvertised post of unreserved category and in compliance whereof a letter dated 9.12.2022 was issued from the office of the Director, Higher Education by which earlier placement of Ms. Anjali Modanwal was cancelled and a direction was issued to the Committee of Management of the said College that no demand is to be made from the list of the selected candidate. He thus submits that in the wake of the said decision and the stand of the respondents the writ petitioner not entitled to the relief.

I have heard learned counsel for the parties and perused the record.

Undisputedly, the writ petitioner was an applicant against advertisement no. 50 and she was placed in the waiting list. It is also not in dispute that Ms. Anjali Modanwal whose name was placed at serial no.38 did not join the post earmarked for her being in the fourth respondent institution and rather to the contrary she was accorded placement in another college which was unadvertised on a special request. The court further finds that the life of the list so prepared therein for making selections stands infused till the new list comes in to operation as per Section 13(2) of 1980 Act. Though this Court at this juncture would have gone into the validity and the legality of the appointment and the placement accorded to Ms. Ajanjali Modanwal in the light of the provisions contained under Sub-Section 13 of the 1980 Act, but, since Ms. Anjali Modanwal has not impleaded as a party and no relevant pleadings are on record thus this Court is abstaining itself from going into the said issue.

The core and the fundamental issue which needs determination is as to whether the writ petitioner can be accommodated against the vacancy which was allotted to Ms. Anjali Modanwal or not. The writ petitioner on one hand places reliance upon the judgement in the case of Khusboo Singh (Supra) so as to contend that there was no explanation offered by the learned Standing Counsel and there was nothing on record available also that the waiting list cannot be put to service once the life of the select list is already there.

At this stage, Sri Shailendra Singh learned Standing Counsel submits that the said crucial issues have not been addressed by the second respondent and according to him the order in question be set aside the matter be remitted back in order to give an opportunity to second respondent to redress the said issue after giving a fresh look.

To such a submission, learned counsel for the petitioner has no objection and he gracefully accepts the same.

Ordinarily, in the normal circumstances this Court could have gone into the merits of the matter however, in view of the stand taken by the learned Standing Counsel this Court is refraining itself from going into the said issue.

Accordingly, the writ petition is being decided in the following terms and conditions:-(a) order dated 3.7.2023 passed by the second respondent, the Director of Higher Education, U.P. Prayagraj is set aside (b) the matter stands remitted back to the second respondent, the Director of Higher Education, U.P. Prayagraj (c) the writ petitioner shall prefer comprehensive representation along with the self attested copy of the writ petition by 13.10.2023 (d) on the receipt of the representation the fourth respondent shall put to notice (e) date be fixed on 19.10.2023 for submission of the objections/version by the fourth respondent (f) the matter be heard in the first week of November, 2023, orders be passed in the second week of November, 2023 (g) the second respondent while deciding the said issue shall bear in mind the following fundamental and core issues: (a) the import and the impact of placement of the writ petitioner in the select list and non joining of Ms. Anjali Modanwal and placement in against unadvertised post (b) the import and the impact of the provisions contained under Sub-Section (2) of Section 13 of the U.P. Act No.1980 (c) the issue with regard to stand taken by the respondent and law laid down in the case of Khusboo Singh (Supra).

Needless to point out that the writ petition has been decided without seeking any response from the respondents. Thus, passing of this order may not be construed to an expression that this Court has gone into the merits of the case.

With the aforesaid observation, the writ petition is disposed off.

Order Date :- 6.10.2023

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