State Of U.P. & Anr vs Nidhi Khanna & Anr

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 No. 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.

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.

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.