# Dr. Radhey Shyam Sharma v. The Director (Higher Education) U.P. and others - **Citation:** (2003) 1 ILRA 9 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2002-12-02 - **Case number:** Civil Misc. Writ Petition No. 27578 of 2002 - **Bench:** M. Katju, K.S. Rakhra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-radhey-shyam-sharma-v-the-director-higher-education-u-p-and-others-40062 - **Pages:** 3 ## Headnote Constitution of India, Article 226- Service Law Petitioner being senior most lecturer - working as officiating Principal- continuously worked till the impugned order dated 1.7.2002 by which the respondent no. 4 was directed to take charge from Petitioner- Respondent no. 4 can not be appointed against the vacancy about which he never applied- order passed by the Director, Higher Education held illegal- direction issued accordingly Held- Para 6 and 9 Since he had never applied against advertisement no. 25 but he had applied only against advertisement no. 23 in which the post of Principal Sarawati Mahavidyalaya, Hathras was not mentioned. 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 http://www.allahabadhighcourt.nic.in 10 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 (Annexure 7 to the writ petition) are hereby quashed. The petitioner is permitted to work as Officiating Principal of Saraswati Mahaviyalaya Hathras until a valid selection is made by the U.P. Higher Education Service Commission. Case law discussed: 1998 (3) SCC -45 2001 (2) UPLBEC 1345 ## Text http://www.allahabadhighcourt.nic.in 1 All] Dr. Radhey Shyam Sharma Vs. The Director (Higher Education) U.P. and others 9 Court held that the word 'selection' does not mean only the final act of selecting candidates with preparation of the list for appointment. The Supreme Court further observed that it would be unreasonable to construe the word selection only as the factum of preparation of the select list. 16. In Dr. A.R. Sircar Versus State of U.P. and others 1993 Supp. (2) SCC 734 the appellant was given appointment only on October 31, 1989. The Supreme Court held that this appointment related to the vacancy of 1982-83. Hence the appointment must relate to that vacancy. 17. In Surendra Narain Singh and others Versus State of Bihar and others 1998 (5) SCC 246 it was held that candidates recruited against earlier vacancies rank senior to those recruited against later vacancy. 18. For reasons given above this writ petition is allowed. A mandamus is issued to the respondent nos. 1 and 2 to treat the petitioner and others similarly situate who were selected in selection which had begun in 1987 as senior to those who were selected in the selection which commenced from 1990. The seniority list will be corrected accordingly. 19. Although all persons who will be covered by this judgment were not present before us but respondents no. 3 and 4 are present and we have heard them. They will be deemed to represent others also like them who were selected in the selection process, which commenced in 1990. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 2.12.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE K.S. RAKHRA, J. Civil Misc. Writ Petition No. 27578 of 2002 Dr. Radhey Shyam Sharma ...Petitioner Versus The Director (Higher Education) U.P. and others ...Respondents Counsel for the Petitioner: Sri S.P. Singh Sri R.K. Gautam Counsel for the Respondents: Sri H.R. Misra Sri Aditya Kumar Singh S.C. Sri Pushpendra Singh Constitution of India, Article 226- Service Law Petitioner being senior most lecturer - working as officiating Principal- continuously worked till the impugned order dated 1.7.2002 by which the respondent no. 4 was directed to take charge from Petitioner- Respondent no. 4 can not be appointed against the vacancy about which he never applied- order passed by the Director, Higher Education held illegal- direction issued accordingly Held- Para 6 and 9 Since he had never applied against advertisement no. 25 but he had applied only against advertisement no. 23 in which the post of Principal Sarawati Mahavidyalaya, Hathras was not mentioned. 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 http://www.allahabadhighcourt.nic.in 10 INDIAN LAW REPORTS ALLAHABAD SERIES [2003 (Annexure 7 to the writ petition) are hereby quashed. The petitioner is permitted to work as Officiating Principal of Saraswati Mahaviyalaya Hathras until a valid selection is made by the U.P. Higher Education Service Commission. Case law discussed: 1998 (3) SCC -45 2001 (2) UPLBEC 1345 (Delivered by Hon'ble 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 orders 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 Sarsawati Mahavidaya, 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 Singh Chauhan be appointed as Principal of the aforesaid college. 3. A vacancy on the post of Principal of the above college occurred on the superannuation of the earlier Principal Sri R. Mohan on 30.6.1998. The petitioner being the senior most 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 the 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 CA-2 but for the 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, Sikandarbad, Bulandshahr vide Annexure CA-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 Mahavidyalya, Mainpuri, vide Annexure CA-6 and CA-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 12.8.1998 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 http://www.allahabadhighcourt.nic.in 1 All] Dilip Kumar Bajaj Vs. Pradeep Kumar Bajaj 11 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 Mahaviyalaya, 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 Vs. Yogesh Kumar Gupta and others (1998) 3 SCC 45, vide paragraph 12, 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 the Court in N.C. Yadav Vs. Director of Education, 2001 (2) UPLBEC 1345. In our opinion this decision is wholly distinguishable since the petitioner in N.C. Yadav'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 6.7.2002 (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 Service Commission. --------- REVISIONAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 5.12.2002 BEFORE THE HON'BLE B.K. RATHI, J. Civil Revision No. 346 of 1998 Dilip Kumar Bajaj ...Revisionist Versus Pradeep Kumar Bajaj ...Respondents Counsel for the Revisionist: Sri P. Sahai Sri Pankaj Naqvi Sri Pankaj Mittal Counsel for the Respondent: Sri Krishna Mohan Sri R.P. Sinha Sri Rajesh Kumar Agarwal Code of Civil Procedure- Section 115- trust was a private trust and therefore, the provisions of Indian Trust Act, 1982 does not apply to the present trust and application under section 34 of the Act was not maintainable- these facts were not considered in detail by the learned District Judge while granting permission to sell the properties. Accordingly, the