# Dr. Anju Chaudhary v. State of U.P. & Ors. 446 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 1 ILRA 445
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-13
- **Case number:** Special Appeal No. 607 of 2022
- **Bench:** Manoj Misra, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-anju-chaudhary-v-state-of-u-p-ors-446-indian-law-reports-allahabad-series-49152
- **Pages:** 11

## Headnote

A. Service Law - UP Higher Education
Services Commission Act, 1980 - Ss.
12 (4) and 13 - UP Higher Education
Services Commission (Procedure for
Selection of Teachers) Regulations,
1983 - Reg. 7 - Posts of Principal -
Placement
in
the
colleges,
determination thereof
- Criteria
-
Merit list, how far relevant - Principle
laid down - The candidate placed
higher in the order of merit would have
a first right to be appointed in the
college
opted
than
the
person/candidate who is lower in the
order of merit irrespective of that
college being lower in the order of
preference than in the preference list
of the candidate lower in the order of
merit - But, if the person higher in the
order of merit is placed in a college
which was higher in his order of
preference, then his/her claim to the
college allotted to the other candidate,
lower in the order of merit, would not
sustain. (Para 23)
B. Constitution of India - Article 226 -
Writ
- Selection
for
the
post
of
Principle
was
held
-
Writ
for
placement
in
a
particular
college
sought - Non-impleadment of all the
selected candidates - Effect - Held,
the petitioner was seeking placement
in the college where the respondent
no. 5 had been appointed though being
lower in the order of merit than the
petitioner. She was not seeking relief
against any other person. In such
circumstances, it was not required of
her
to
implead
all
the
selected
candidates. (Para 28)
Special Appeal allowed. (E-1)
List of Cases cited:

## Text

1 All. Dr. Anju Chaudhary Vs. State of U.P. & Ors.
445
stated that appellant was selected to the
post of Constable. He had to join on July
11, 2018. She got the F.I.R. registered
under pressure of her family members so
that he may not be able to join the service.
No incident, as stated by her in the FIR or
in the statement under Section 164 Cr.P.C.,
has ever happened.

10. The stand taken by the prosecutrix
in
her
statement
in
the
Court
is
corroborated from the medical evidence
wherein no injury mark was found on any
part of her body.

11. From perusal of the judgment of
the learned Special Judge (POCSO Act), it
is evident that the appellant was not
acquitted giving him the benefit of doubt.
Rather, the acquittal of the appellant was
on account of failure of the prosecution to
prove its case as the prosecutrix herself had
denied any incident on the basis of which
FIR was registered.

12. Considering the aforesaid facts, in
our view, order dated November 21, 2020
passed by the Superintendent of Police,
Jalaun rejecting the claim of the appellant
for giving appointment after his acquittal in
the trial, is illegal. The aforesaid order as
well as the order passed by the learned
Single Judge dismissing the writ petition
are set aside. The respondents are directed
to consider the case of the appellant afresh,
keeping in view the fact that the appellant
was acquitted, within a period of three
months from the date of receipt of a copy
of the order. It is made clear that the
appellant shall be entitled to all service
benefits from the date of joining.

13. From the judgment passed by
the Special Judge, POCSO Act, it is
evident that the appellant was not at all
involved in the incident, hence, it cannot
be said to be a case in which the appellant
was involved in a case of moral
turpitude.

14. However, before parting with
the case, we deem it appropriate to issue
show cause notices to the prosecutrix in
FIR No. 0185 of 2018, Police StationCharkhari, District-Mahoba for getting a
false case registered against the appellant,
the incident of which she had denied in
Court, and as well as to her father Ratan
Singh
and
brother
Sandeep,
which
according
to
the
prosecutrix
were
instrumental in pressurizing her to get a
false
case
registered,
as
to
why
appropriate proceedings may not be
initiated against them for getting a false
criminal case registered.

15. Let service on the aforesaid
persons
be
effected
through
Chief
Judicial Magistrate, Mahoba.

16. The present Special Appeal is
allowed to the extent as mentioned above.
However, for considering the notices
issued to the prosecutrix, her father and
brother, the appeal shall be listed before
the Court on January 17, 2023.
----------
(2023) 1 ILRA 445
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 607 of 2022

Dr. Anju Chaudhary ...Appellant
Versus
State of U.P. & Ors. ...Respondents
446 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Kauntey Singh, Sri Ashok Khare (Sr.
Counsel)

Counsel for the Respondents:
C.S.C., Sri Arvind Srivastava III, Sri Gagan
Mehta, Sri Manoj Kumar Singh

A. Service Law - UP Higher Education
Services Commission Act, 1980 - Ss.
12 (4) and 13 - UP Higher Education
Services Commission (Procedure for
Selection of Teachers) Regulations,
1983 - Reg. 7 - Posts of Principal -
Placement
in
the
colleges,
determination thereof
- Criteria
-
Merit list, how far relevant - Principle
laid down - The candidate placed
higher in the order of merit would have
a first right to be appointed in the
college
opted
than
the
person/candidate who is lower in the
order of merit irrespective of that
college being lower in the order of
preference than in the preference list
of the candidate lower in the order of
merit - But, if the person higher in the
order of merit is placed in a college
which was higher in his order of
preference, then his/her claim to the
college allotted to the other candidate,
lower in the order of merit, would not
sustain. (Para 23)
B. Constitution of India - Article 226 -
Writ
- Selection
for
the
post
of
Principle
was
held
-
Writ
for
placement
in
a
particular
college
sought - Non-impleadment of all the
selected candidates - Effect - Held,
the petitioner was seeking placement
in the college where the respondent
no. 5 had been appointed though being
lower in the order of merit than the
petitioner. She was not seeking relief
against any other person. In such
circumstances, it was not required of
her
to
implead
all
the
selected
candidates. (Para 28)
Special Appeal allowed. (E-1)
List of Cases cited:

1. Km. Alka Rani Gupta Vs Director of
Education (Higher) & anr.; 2003 (2) ESC
944
2. Dr. Vinay Kumar Vs The Director of
Education (Higher)& ors.; (2006) 1 UPLBEC
334: 2006 (62) ALR 808
(Delivered by Hon'ble Manoj Misra, J.)

1. This intra-court appeal is against
the judgment and order dated 20.06.2022
passed by the learned Single Judge in Writ
A No. 2125 of 2022, whereby the writ
petition of the appellant (i.e. the petitioner)
has been dismissed.

2. Writ A No. 2125 of 2022 was filed
by the appellant for quashing the order
dated 20.12.2021 passed by the Director of
Higher Education, U.P., Prayagraj (for
short
the
Director)
rejecting
her
representation
for
her
placement
as
Principal of either Gokul Das Hindu Girls'
College, Moradabad or Acharya Narendra
Dev Nagar Nigam Kanya Mahavidyalaya,
Harsh Nagar, Kanpur.

3. In brief, the facts giving rise to the
present appeal are as follows. Pursuant to
an advertisement issued by the U.P. Higher
Education Service Commission, Prayagraj
(for short the Commission), inviting
applications for 290 posts of Principal in
various graduate and post-graduate colleges
in the State of Uttar Pradesh, the petitioner
applied
for
appointment
and,
after
undergoing the selection process, was
placed at serial no. 200 in the revised merit
/ select list dated 05.10.2021. Dr. Charu
Mehrotra
(respondent
no.5),
who
participated in the same selection process,
was placed at serial no. 205, and Dr. Sunita
Arya (respondent no. 6), who was placed at
serial no 218, were placed in those colleges
1 All. Dr. Anju Chaudhary Vs. State of U.P. & Ors.
447
which were higher in the order of
preference of the petitioner than where the
petitioner was placed by the Director. The
case of the petitioner is that in her
preference /option list of colleges for
placement, pursuant to her selection, she
had given multiple options in the order of
preference. In that list, Gokul Das Hindu
Girls' College, Moradabad was at serial no.
20 whereas, Acharya Narendra Dev Nagar
Nigam
Kanya
Mahavidyalaya,
Harsh
Nagar, Kanpur was at serial no. 34 in the
order
of
preference.
However,
the
petitioner
was
placed
at
Mahila
Mahavidyalaya, Kidwai Nagar, Kanpur,
which was at serial no. 41 in the order of
preference given by the petitioner. On the
other hand, the respondent no.5 (Dr. Charu
Mehrotra), who was placed at serial no. 205
in the merit list, and respondent no.6 (Dr.
Sunita Arya), who was placed at serial no.
218 in the merit list, were placed by the
Director in Gokul Das Hindu Girls'
College, Moradabad and Acharya Narendra
Dev Nagar Nigam Kanya Mahavidyalaya,
Harsh
Nagar,
Kanpur,
respectively.
According to the petitioner, since she was
placed higher in the final / revised merit list
than the respondents 5 and 6, she ought to
have been preferred over respondent no. 5
for her placement in Gokul Das Hindu
Girls' College, if not there, then over
respondent no.6 for her placement in
Acharya Narendra Dev Nagar Nigam
Kanya Mahavidyalaya. But since the
petitioner was not given the due placement,
she filed a representation before the
Director. When the representation was not
addressed, she filed Writ A No. 17108 of
2021, which was disposed off by order
dated 09.12.2021 thereby requiring the
Director to decide the claim of the
petitioner, in accordance with law, by a
reasoned order, after giving opportunity of
hearing to the respondent no.5 (Dr. Charu
Mehrotra). It was also provided therein that
till the representation of the petitioner is not
decided, the petitioner shall not be forced
to join the allotted college, namely, Mahila
Mahavidyalaya, Kidwai Nagar, Kanpur.
Pursuant to the order dated 09.12.2021, the
representation of the petitioner was decided
and rejected by the Director by order dated
20.12.2021 impugned in Writ A No. 2125
of 2022 out of which the present appeal
arises.

4. In the writ petition, two counteraffidavits were filed. One was a common
counter-affidavit filed on behalf of Staterespondents 1, 3 and 4, namely, the State of
U.P.; the Director of Higher Education,
U.P., Prayagraj and the Joint Director of
Higher Education, U.P., Prayagraj. The
other was filed on behalf of respondent
no.5 (Dr. Charu Mehrotra). In neither of the
two counter-affidavits, it was disputed that
in the revised merit-list the petitioner was
placed higher than Dr. Charu Mehrotra
(respondent no.5) and Dr. Sunita Arya
(respondent no.6). It was also not disputed
in the counter-affidavits that in the list of
options (preference list) submitted by the
writ petitioner (i.e. the appellant herein),
Gokul
Das
Hindu
Girls'
College,
Moradabad,
which
was
allotted
to
respondent no.5 (Dr. Charu Mehrotra), was
at serial no. 20 and the other college,
namely, Acharya Narendra Dev Nagar
Nigam
Kanya
Mahavidyalaya,
Harsh
Nagar, Kanpur, which has been allotted to
respondent no.6 (Dr. Sunita Arya), was at
serial no. 34 whereas, the writ petitioner
was
allotted
Mahila
Mahavidyalaya,
Kidwai Nagar, Kanpur which was at serial
no. 41 in her preference list.

5. In the counter-affidavit submitted
by the State-respondents, the allotment of
colleges was sought to be justified by
stating that it has been made in accordance
448 INDIAN LAW REPORTS ALLAHABAD SERIES
with the merit and order of preference. In
the
counter-affidavit
filed
by
the
respondent no.5, it is stated that according
to the knowledge of the respondent no.5,
the petitioner had submitted a wrong
preference and therefore she has been
allotted Mahila Mahavidyalaya, Kidwai
Nagar, Kanpur. In addition to above,
another ground was taken that pursuant to
the allotment the petitioner had joined on
13.01.2022 therefore, she cannot raise a
grievance in respect of the allotment.

6. In the rejoinder-affidavit, the writ
petitioner stated that if the petitioner had
not joined the allotted college then her
candidature would have been cancelled
therefore, the petitioner had no option but
to join the allotted college. In these
circumstances, by joining the college, it can
not be said that she waived her right to
question the allotment more so, when she
had already lodged a protest in respect
thereof and had earlier also filed a writ
petition questioning the same.

7. Learned Single Judge dismissed the
writ petition. The reasons for dismissal can
be found in paragraph nos. 7, 8 and 9 of the
judgment extracted below:-

"7.
After
hearing
rival
contentions, this Court finds that as per
Regulation 7(1) of the U.P. Higher
Education
Services
Commission
(Procedure for Selection of Teachers)
Regulations, 1983, the Commission may
recommend three names of the candidates,
in order of merit for one post of Principal
as per Regulation 7 (2). As per Regulation
7 (3), the post of Principal of degree
colleges shall be offered in order of merit
with due regard to the options given by the
candidates and the post in lower grade
shall similarly be offered to candidates
standing next in the order of merit. In the
present case, admittedly the respondent
nos. 5 & 6 are lower in merit than the
petitioner and therefore, the petitioner
claims to have been offered two institutions
in dispute prior to respondent nos. 5 & 6.

8. The preference filled by the
petitioner online on 29.07.2021 has been
brought on record as Annexure No. 4 to the
writ petition which shows that she had
given preference to Gokul Das Hindu Girls
College, Moradabad (sl.no. 20), Acharya
Narendra Dev, Nagar Nigam Mahila
Mahavidyalaya, Kanpur Nagar, (sl.no. 34)
and third and last preference to Mahila
Mahavidyalaya,
Kidwainagar,
Kanpur
Nagar (sl.no. 41). In the counter affidavit
filed on behalf of the respondents, the
preference given by respondent no. 5 has
been brought on record wherein she has
given 8th preference to Gokul Das Hindu
Girls College, Moradabad (sl.no. 20).

9. It is clear that the 20th
preference of the petitioner was Gokul Das
Hindu Girls College, Moradabad, while the
respondent no. 5 had given 8th preference
to the same in her offline option. In her
online option, she has also given same
preference to Gokul Das Hindu Girls
College, Moradabad. Since respondent no.
6 has not appeared nor filed counter
affidavit,
her
preference
cannot
be
examined by this Court but it is clear from
the preference of the respondent no. 5 that
the petitioner had claimed for appointment
in Gokul Das Hindu Girls College,
Moradabad by way of 20th preference. In
the
impugned
order
passed
by
the
respondent no. 3, Director of Higher
Education, it has been mentioned that the
placement of the candidates is done by the
U.P.
Higher
Services
Selection
Commission,
Prayagraj.
Online
1 All. Dr. Anju Chaudhary Vs. State of U.P. & Ors.
449
appointment is made by the Director of
Higher Education. Further considering the
fact that the petitioner gave her 20th
preference for Gokul Das Hindu Girls
College, Moradabad, and the respondent
no.5 gave 8th preference to the aforesaid
college, the preference of respondent no. 5
was more for Gokul Das Hindu Girls
College,
Moradabad,
vis-a-vis
the
petitioner who opted for the aforesaid
college by giving 20th preference to the
same. Even though the petitioner was
above in merit list but since she did not
opted for the aforesaid college before the
preference of respondent no. 5 (8th
preference),
therefore,
the
aforesaid
college
was
rightly
allotted
to
the
respondent no. 5. Even otherwise, the
petitioner has submitted her joining at
Mahila Mahavidyalaya Kidwai Nagar,
Kanpur Nagar on 15.01.2022 without any
protest as clear from Annexure.C.A.5 to the
counter affidavit filed on behalf of the
State-respondents. She cannot be permitted
to maintain her claim against respondent
no. 4 anymore. In the rejoinder affidavit
filed on behalf of the petitioner, it has only
been stated in paragraph no.12 that the
petitioner has been compelled to join at
Mahila Mahavidyalaya Kidwai Nagar,
Kanpur Nagar. Therefore, it is clear that
the petitioner has no cause of action left.
Even otherwise her preference for Gokul
Das Hindu Girls College, Moradabad, was
below the respondent no. 5."

8. We have heard Sri Ashok Khare,
learned senior counsel, assisted by Sri
Kauntey Singh, for the petitioner; learned
Standing Counsel for the respondents 1, 3
and 4; Sri Arvind Srivastava-III for the
respondent no.5; and Sri Manoj Kumar
Singh for the respondent no.2 (the
Commission).

9. Sri Khare appearing for the
appellant submitted that placement of
selected teachers in the colleges is to be
made as per the procedure provided in the
U.P.
Higher
Education
Services
Commission Act, 1980 (for short 1980
Act). Sub-section (4) of section 12 of the
1980 Act reads as under:-

"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 subsection (3):

Provided
further
that
the
candidates shall be required to indicate
their order of preference for the various
colleges vacancies wherein have been
advertised."

10. Section 13 of the 1980 Act
provides as follows:-

"[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 written examination and
interview 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
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
an
examination is held.
450 INDIAN LAW REPORTS ALLAHABAD SERIES

(2)
The
list
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 subsection (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 preceding provisions, whereto abolition
of any post of teacher in any college,
services
of
the
person
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
subsection (3) or sub-section (4) or subsection (5) to the candidate concerned."

11. Under Section 31 of the 1980 Act,
the Commission may, with the previous
approval of the State Government, make
regulations. In exercise of that power, the
Commission has made the Uttar Pradesh
Higher Education Services Commission
(Procedure for Selection of Teachers)
Regulations,
1983
(for
short
1983
Regulations).
Regulation
7
of
1983
Regulations provides as follows:-

"7.
Recommendation
for
appointment. - (1) The Commission may
recommend the names of up to three
candidates, in order of merit, for each post.

(2) The post of Principal shall-

(a) in the case of women's
colleges, be offered to the candidates in the
list of women candidates, and

(b) in the other colleges, be
offered to the candidates in the general list
after striking out the names of the women
candidates who have been offered posts
under clause (a).

(3) The posts of the Principal of
degree colleges in the higher grade shall be
offered in order of merit with due regard to
the preference given by the candidates and
the posts in the lower grade shall similarly
be offered to the candidates standing next
in order of merit.

(4) The procedure mentioned in
sub-regulations (2) and (3) shall, mutatis
mutandis, be followed in respect of the
posts of teachers, other than Principal."

12. As to how the provisions of 1980
Act and the Regulations framed therein
were
to
be
applied
was
discussed
extensively by a Division Bench of this
Court in paragraph 9 of its judgment in the
case of Km. Alka Rani Gupta v. Director
of Education (Higher) and another; 2003
1 All. Dr. Anju Chaudhary Vs. State of U.P. & Ors.
451
(2) ESC 944 which was affirmed by a Full
Bench of this Court in the case of Dr.
Vinay
Kumar
v.
The
Director
of
Education (Higher) and Ors.: (2006) 1
UPLBEC 334 equivalent to 2006 (62)
ALR 808.

13. It has been urged that in Dr. Vinay
Kumar's case (supra), the view taken by
Division Bench in Km. Alka Rani Gupta's
case (supra), in paragraph 9 of the judgment,
has been specifically affirmed in paragraph
42 of the judgment of the Full Bench in Dr.
Vinay Kumar's case (supra) and the Full
Bench observed, in paragraphs 36 and 37 of
its judgment, that the Director at the time of
making intimations is required to take into
account only two things, in regard to every
candidate, namely, the candidate's merit
position as determined under section 13(1),
and the preferential list of colleges or
institutions given by the candidate himself. In
paragraph 37, in Dr. Vinay Kumar's case
(supra), the Full Bench further observed that
the Director has to allot the candidates to
different colleges on the basis of these two
parameters only.

14. In paragraph 9 of Alka Rani's case
(supra), it has been held as follows:-

"9. Thus, the legal position which
emerges from the above provisions in the Act
and Regulations is as follows :

(1) Where a large number of
candidates
are
selected
for
various
institutions
by
the
Commission,
the
Commission has to prepare a select list in
accordance with the merit determined by the
Commission.

(2) The candidate who is on the
top of the select list will be given his first
preference ;

(3) Then the candidate who is at
serial position No. 2 in the select list will
be considered by the Director. If his first
choice has already been filled by the
candidate at the top of the select list, then
this candidate will be given his second
choice, otherwise he will get his first
choice.

(4)
Then
we
come
to
the
candidate who is on the third position in
the select list. If the choice of his first
preference has not been already allotted to
a candidate higher than him in the select
list, he will be given that institution,
otherwise he will be given his second
choice, unless that too has been allotted to
the candidate above him, in which case he
will be allotted the institution of his third
choice. In this way, the Director will do the
placement."

15. By relying on the aforesaid
judgment, the learned counsel for the
petitioner submits that the reasoning
recorded by the learned Single Judge fails
to take into account the law laid down by
Division Bench of this Court in Alka
Rani's case (supra), which has been
affirmed by the Full Bench in Dr. Vinay
Kumar's case (supra) and therefore, the
judgment and order of the learned Single
Judge as well as the order impugned in the
writ petition i.e. of the Director rejecting
the representation of the petitioner is liable
to be set aside and the Director must
therefore accord fresh consideration to the
representation submitted by the petitioner
in light of the law laid down by this Court
in Alka Rani's case (supra), affirmed in
Dr. Vinay Kumar's case (supra).

16. Per contra, the learned counsel for
the respondent no.5 submitted that if the
matter of allotment is to be reopened
452 INDIAN LAW REPORTS ALLAHABAD SERIES
afresh, several candidates placement would
be affected therefore, in absence of they
being party to the writ proceeding, relief
sought cannot be granted to the petitioner.
It has also been urged that the petitioner
had joined the allotted institution therefore
she has waived her right to challenge her
placement. For this reason alone, the writ
petition of the petitioner is liable to be
dismissed and has rightly been dismissed.

17. Learned Standing Counsel has
tried to justify the order passed by the
Director and has supported the submissions
made by Sri Arvind Srivastava-III, who
appeared for the respondent no.5.

18. We have considered the rival
submissions and have perused the record.

19. It is not in dispute, inter se parties,
that in the order of merit, the writ petitioner
(Dr. Anju Chaudhary) was placed at serial
no. 200; the respondent no.5 (Dr. Charu
Mehrotra) was placed at serial no. 205; and
the respondent no.6 (Dr. Sunita Arya) was
placed at serial no. 218. It is also not in
dispute that in the order of preference
submitted
by
the
petitioner
Mahila
Mahavidyalaya, Kidwai Nagar, Kanpur, the
college which has been allotted to the
petitioner by the Director, was at serial no.
41 whereas, Gokul Das Hindu Girls'
College, Moradabad, which has been
allotted to respondent no.5, was at serial
no. 20 and Acharya Narendra Dev Nagar
Nigam
Kanya
Mahavidyalaya,
Harsh
Nagar, Kanpur, which has been allotted to
respondent no.6, was at serial no. 34.

20. In Dr. Vinay Kumar's case
(supra), the Full Bench examined the
legislative scheme of the 1980 Act to find
out as to what legislative intent is spelled
out from the amended provisions of
sections 12 and 13 thereof. The Full Bench
on the use of phrase "due regard" in subsection (3) of Section 13 of the 1980 Act,
in Dr. Vinay Kumar's case (supra),
observed, in paragraph 23 of the judgment,
as follows:-

"23. From the definition of word
"due regard" as noted above given in
Black's
Law
Dictionary
and
the
observations of the apex Court as quoted
above it is clear that "due regard" means
regard to a factor which is due according
to the statutory scheme. It is also to be
noted that Section 13(3) refers to " due
regard" in the prescribed manner. Thus
"due regard" used in Section 13(3) cannot
be interpreted as only regard as sought to
be canvassed by the counsel for the
petitioner. In case the interpretation
suggested by the counsel for the petitioner
is accepted the placement of the candidate
shall only depend on preference indicated
by a candidate that will give a go by to the
entire
merit
scheme.
The
above
interpretation cannot be accepted which
can be explained by giving a simple
illustration. In merit list ten candidates
have given their first preference of a
particular college. For recommending the
name of the candidate for the particular
vacancy in a college, the preference of the
candidate higher in merit has to be
accepted. The amendment made in Sections
12 and 13 does not indicate that merit base
scheme of recommendation of names
against the particular vacancy has been
given a go by. The merit is pivotal factor
and the preference of the candidate has to
be given effect to as far as possible. In the
event for a particular college no one has
given preference person lower in merit may
get placement in that college when his
chance comes for consideration. The
interpretation sought to be canvassed by
1 All. Dr. Anju Chaudhary Vs. State of U.P. & Ors.
453
the counsel for the petitioner does not fall
along with the legislative scheme as
indicated by amended provision of Sections
12 and 13 of the Act and the Regulations. It
is true that those provisions of the
regulation which can not stand along with
the
amended
provisions
of Sections
12 and 13 has
to
be
treated
as not
operative but those part of the regulation
which is not in conflict with any provisions
of the Act, has still to be followed. This
view of ours is re-enforced with express
provisions
of Sections
12 (4)
of
the
amended provision which still refers to and
relies the regulation for the manner of
selection of persons for appointment."

21. Thereafter, in paragraph 24 of the
judgment in Dr. Vinay Kumar's case
(supra), the decision in Alka Rani's case
(supra) was noticed. Paragraph 24 of the
judgment in Dr. Vinay Kumar's case
(supra) is extracted below:

" 24. In the case of Alka Rani
Gupa (supra), a Division Bench of this
Court said as follows in paragraph 9,
which is set out below:-

9. Thus the legal position which
emerges from the above provisions in the
Act and Regulations is as follows :

(i) Where a large number of
candidates
are
selected
for
various
institutions
by
the
Commission,
the
Commission has to prepare a select list in
accordance with the merit determined by
the Commission.

(ii) The candidate who is on the
top of the select list will be given his first
preference.

(iii) Then the candidate who is at
serial position No. 2 in the select list will
be considered by the Director. If his first
choice has already been filled by the
candidate at the top of the select list then
this candidate will be given his second
choice, otherwise he will get his first
choice.

(iv) Then we come to the
candidate who is on the third position in
the select list. If the choice of his first
preference has not been already allotted to
a candidate higher than him in the select
list he will be given that institution,
otherwise he will be given his second
choice, unless that too has been allotted to
the candidate above him, in which case he
will be allotted the institution of his third
choice. In this way the Director will do the
placement."

22. In paragraphs 36, 37, 38 and 39 of
the judgment of Dr. Vinay Kumar's case
(supra), it was held as follows:-

"36. In our opinion, the Director
at the time of making intimation is to take
into account only two things, in regard to
every candidate, namely, the candidate's
merit position as determined under section
13(1), and the preferential list of colleges
or institutions given by the candidate
himself.

37. How the Director is to allot
the candidates to the different colleges on
the basis of these two items and these two
items only are, with respect, correctly laid
down by the Division Bench in paragraph 9
in Alka Rani's case (supra) and we agree
with that paragraph in toto.

38. In our opinion the Director
does not use a discretionary power in
making intimations under sub-section (3) of
section 13. Instead of the Director, any
454 INDIAN LAW REPORTS ALLAHABAD SERIES
other person with an equally logical mind
as the Director will also be able to perform
the same act but the Director has been
given the authority, so as to carry
conviction and to make it safe for the
colleges to follow the recommendations
and
intimations
coming
under
his
signature.

39. The working of sub-section
(3) of section 13 shows that Director's
action is compulsorily prescribed by the
said sub-section. Although the said subsection does not refer to the merit list at all
yet as laid down in paragraph 9 of Dr. Alka
Rani's case (supra) the merit list must be
considered by the Director and in this
regard the Director cannot disregard subsection (1) of section 13 and the exercise
performed under that sub-section. The
exercise by the Director is performed
thereafter and must be performed thereon.
"

23. From the decision of the Full
Bench, it is clear that the Director has to
accord due weightage to the merit list
before making allotment of colleges. Thus,
if we apply the ratio laid down in Alka
Rani's case, affirmed in Dr. Vinay
Kumar's case, the position that would
emerge is that the candidate placed higher
in the order of merit would have a first
right to be appointed in the college opted
than the person/candidate who is lower in
the order of merit irrespective of that
college being lower in the order of
preference than in the preference list of the
candidate lower in the order of merit. But,
if the person higher in the order of merit is
placed in a college which was higher in
his order of preference, then his/her claim
to the college allotted to the other
candidate, lower in the order of merit,
would not sustain.

24. As it is clear from the discussion
above that the petitioner had placed Gokul
Das Hindu Girls' College, Moradabad in
the order of preference at serial no. 20 but
was placed in a college which was at Serial
No. 41 in the order of preference, whereas
respondent no.5, though placed lower in the
order of merit, was allotted the said college,
in our view, the allotment/placement made
by the Director was in the teeth of the law
laid down by this Court in Alka Rani's
case (supra), which has been affirmed by
the Full Bench in Dr. Vinay Kumar's case
(supra).

25. As the learned Single Judge has
failed to take notice of the binding
decisions of this Court in Alka Rani's case
(supra) and in Dr. Vinay Kumar's case
(supra), the view taken by the learned
Single Judge cannot be sustained.

26. At this stage, we may deal with
the other submission of the learned counsel
for the respondent, which is, that since the
petitioner had already joined the allotted
college before filing this petition, she
waived her right to challenge the placement
made by the Director.

27. The aforesaid submission does not
appeal to us because here the petitioner had
earlier filed a writ petition, namely, Writ A
No. 17108 of 2021, in which she had
specifically challenged her placement. That
writ petition was disposed off by giving her
liberty to represent her cause to the
Director who, in turn, was required to pass
a
speaking
order
after
hearing
the
concerned
respondent
(Dr.
Charu
Mehrotra). It was specifically directed in
the order dated 09.12.2021 that till the
decision
on
the
representation,
the
petitioner shall not be forced to join Mahila
Mahavidyalaya, Kidwai Nagar, Kanpur. It
1 All. Vice-Chancellor, Kanpur & Anr. Vs. Dr. Lallu Singh & Anr.
455
is only after the representation was decided
that she had joined the college, without
specifically giving up her right to challenge
the order, because if she had not joined, her
candidature would have been cancelled. In
these circumstances, where the petitioner
had been litigating for her cause, it cannot
be said that she had waived her right to
challenge the placement.

28. We also do not accept the
submission of the learned counsel for the
respondent no.5 that all the candidates were
required to be impleaded in the writ
proceedings. The reason is that the writ
petitioner was seeking placement in the
college where the respondent no.5 had been
appointed though being lower in the order
of merit than the petitioner. She was not
seeking relief against any other person. In
such circumstances, it was not required of
her to implead all the selected candidates.
Otherwise
also,
once
the
allocation/
placement is questioned and adjudicated
upon, it is for the Director to adjust the
allocation of colleges as per law.

29. For all the reasons recorded
above, we are unable to agree with the view
taken by the learned Single Judge. The
judgment and order of the learned Single
Judge dated 20.06.2022 is hereby set aside.
The writ petition of the petitioner is
allowed. The order of the Director dated
20.12.2021 is set aside and a direction is
issued to the Director to pass a fresh order
in respect of placement of the petitioner, as
represented by her vide representation
dated 16.12.2021, in accordance with the
law, preferably, within a period of four
weeks from the date a copy of this order is
placed in his office.

30. The appeal is allowed as above.
----------
(2023) 1 ILRA 455
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Special Appeal No. 671 of 2022
connected with
Special Appeal No.666 of 2022

Vice-Chancellor, Kanpur & Anr.
 ...Appellants
Versus
Dr. Lallu Singh & Anr. ...Respondents

Counsel for the Appellants:
Sri Rakesh Kumar

Counsel for the Respondents:
Sri Siddhartha Srivastava

A. Service Law - Constitution of India -
Article 14 - Right of equality -Intelligible
differentia - Pay parity - Junior was given
higher pay, though discharging same duty
- Effect - Junior obtained Ph.D. degree
while in service, whereas the petitioner
obtained the same before entry in service
-
Reason,
how
far
justifiable
for
discrimination - Legal principle of pay
parity laid down - Justifiable grounds,
when
the
senior
cannot
invoke the
equality
doctrine,
explained
-
Held,
ordinarily, grant of higher pay to a junior
would ex facie be arbitrary unless there is
an intelligible differentia justifying it. No
doubt, if there are justifiable grounds for
doing so, the seniors cannot invoke the
equality
doctrine.
Justifiable
grounds
could be such as (i) when pay fixation is
done
under
valid
statutory
rules/
executive instructions; (ii) when persons
recruited from different sources are given
pay protection; (iii) when a senior is
stopped at efficiency bar; (iv) when
advance
increments
are
given
for
experience/ passing a test / acquiring