Holding

The earlier select list lapses upon preparation of a new list, so the High Court could not issue a mandamus directing appointment; the appeal is allowed and the writ dismissed.

Summary

The Uttar Pradesh Higher Education Services Commission advertised vacancies for lecturers (Advertisement No. 29) in 2000 and selected Nidhi Khanna, placing her at the top of the wait‑list. She claimed she never received the appointment letter for a college in Meerut and later sought appointment at C.M.P. Degree College, Allahabad, but the authorities refused, citing a newer advertisement (No. 32) and a fresh merit list prepared in 2003 which, under the Uttar Pradesh Higher Services Commission Act, rendered the earlier list void. Khanna filed a writ petition and the Allahabad High Court issued a mandamus directing her appointment, which the State of U.P. appealed. The Supreme Court examined Sections 12 and 13 of the Act and held that a select list remains valid only until a new list is prepared, after which the old list lapses. Consequently, the High Court could not lawfully issue a mandamus directing appointment contrary to the statutory scheme. The appeal was allowed, the High Court order set aside, and the writ dismissed.

Issues considered

Whether the High Court could issue a writ of mandamus directing appointment of a candidate selected under an earlier advertisement after a subsequent advertisement and merit list had been prepared.
Interpretation of Sections 12 and 13 of the Uttar Pradesh Higher Services Commission Act, 1980 regarding the validity and lapse of a select list.
Whether the candidate has a legal right to appointment despite not receiving the original appointment communication.

Subjects

service lawappointmentselection listwrit of mandamusUttar Pradesh Higher Services Commission Actmerit listwait listadministrative law

Judgment

'Y
STATE OF U.P. AND ANR. A
11.
NIDHI KHANNA AND ANR.

MAY 11, 2007

[C.K. THAKKERAND P.K. BALASUBRAMANYAN, JJ.] B

Service Law-Appointment-Selection of Candidate pursuant to an
\
---( advertisement-Placed in wait list-Appointment sought-Denied on the
ground that in view of Merit List prepared pursuant to subsequent
advertisement, Merit List prepared under previous advertisement had lapsed
c
Writ Petition--High Court issuing Writ of Mandamus directing appointment
of the candidate-On appeal, held: The Writ was issued directing the
authorities to act contrary to law-Under the statutory provisions as soon
as the new list is prepared old list comes to an end-.Uttar Pradesh Higher
Services Commission Act, 1980-ss. 12 and 13. D

Respondent No. 1 applied for the post of lecturer pursuant to
• Advertisement No. 29 from Uttar Pradesh Higher Education Services
)" Commissfon. She was selected and her name was placed at serial no. 1 in the
wait list. Having not received any letter, she met the Director to enquire about
her appointment and she was told that letter appointing her in a college of
E
Meerut was sent to her. Since she did not join there, her placement was
cancelled. She denied having received any such letter. She prayed for her
appointment in a college at Allahabad. The college had no objection to appoint
her. The prayer was rejected on the ground that the list prepared under
Advertisement No.29 had lapsed as new list under Advertisement No. 32 was F
prepared. Respondent filed Writ Petition. High Court allowed the Writ

.,.,, -y
Petition, directing the authorities to appoint respondent No.1 in the college
at Allahabad. Hence the present appeal.

Allowing the appeal, the Court
G
HELD: High Court was not justified in issuing a Writ of Mandamus
directing the appellants to appoint respondent No.1 as Lecturer in the College
at Allahabad. Once it is established that the first respondent was selected
. ..,.,. and empanelled in the Wait List pursuant to Advertisement No. 29 and that
Advertisement No. 32 was thereafter issued and Merit List was prepared H
429
430 SUPREME COURT REPORTS [2007] 6 S.C.R.

A accordingly, the statutory provisions will come into play. Under the provisions
of Uttar Pradesh Higher Services Commission Act, 1980, as soon as the new
list is prepared, the old list comes to an end. The High Court could not have
issued a writ of Mandamus directing the Authorities to act contrary to law.
That is not the ambit and scope of writ of Mandamus.
(Paras 7 and 17] (432-E-F; 438-B-DI
B
State of Bihar and Anr. v. Madan Mohan Singh and Ors., (1994] Supp
3 SCC 308 and Kamlesh Kumar Sharma v. Yogesh Kumar Gupta and Ors.,
(199813 sec 45, relied on
~ '
.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2442 of2007.
c
From the Final Judgment and Order dated 15.03.2004 of the High Court
of Judicature of Allahabad in Civil Misc. Writ Petition No. 45418 of2003.

Shobha Dikshit, Sr. Adv., and Niranjana Singh for the Appellants.
D Pramod Swarup for the Respondents.

The Judgment of the Court was delivered by »
1
C.K. THAKKER, J. I. Leave granted.

E 2. This appeal is directed against the judgment and order passed by the
Division Bench of the High Court of Judicature at Allahabad on March 15,
2004 in Civil Miscellaneous Writ Petition No. 45418 of 2003. By the said
judgment, the High Court directed the appellants to give an appointment letter
to respondent No. I (writ petitioner) for the post of Lecturer in Geography
F in C.M.P. Degree College, Allahabad 'forthwith'.

3. Short facts giving rise to the present appeal are that in June, 2000,
T .....
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
G advertisement, respondent No. I (writ petitioner) applied for the post of
Lecturer in Geography in August, 2000. A Select List was prepared on July
19, 200 I. Respondent No. I was declared selected, but her name was placed
at Serial No. I 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
...
H
STATE OF U.P. v. NIDHI KHANNA [C.K. THAKKER. J.] 431

~
respondent No. I was appointed as Lecturer in Geography in R.G. Girls A
College, Meerut. According to the appellants, however, respondent No. I did
not join at Meerut College and hence another candidate was appointed and
placement of respondent No. I 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,
B
respondent No. I met the Director and stated that though she was selected
as Lecturer in Geography and was placed at Sr. No. I in Wait-List, she had not
received a Letter of Appointment. Respondent No. I 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. I. She, therefore,
prayed that she be appointed in C.M.P. Degree College, Allahabad. The c
prayer was, however, rejected by the appellants on the ground that new list
was prepared in March, 2003 under Advertisement No. 32. Respondent No.
I 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, D
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 E
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 F
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
G
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 .
..,.,..
5. The learned counsel for the appellants contended that the High Court H
has committed an error of law in directing the Authorities to appoint
432 SUPREME COURT REPORTS [2007] 6 S.C.R.

A respondent No. forthwith in C.M.P. Degree College, Allahabad. It was
submitted that once new select-list was prepared in March, 2003, the old list
came to an end and no appointment could be made from that list. It was also
submitted that according to the appellants, respondent No. I was intimated
that she was appointed in Meerut College, but she did not join the said
B college and hence another person was appointed. She, therefore, had no
occasion to make any grievance. The order passed by the High Court, therefore,
deserves to be set aside by ordering dismissal of the petition filed by
respondent No. I (writ petitioner).

6. The learned counsel for respondent No. I, on the other hand, supported
C the order of the High Court. He submitted that admittedly respondent No. I
was selected by the Commission. She was at Serial No. I in the Wait-List. It
was, therefore, incumbent on the Authorities to consider her claim when a
case for appointment of a candidate from wait-list arose. She had never
received any communication/order that she was appointed in Meerut College
and it was only in July, 2003 that the Director told her that she did not joint
D at Meerut College. She, therefore, made a prayer to allow her to join in C.M.P.
College, Allahabad and also obtained no objection certificate from the said
college. Respondent No. I had thus suffered without there being any fault
on her part. The High Court, in the circumstances, was right in directing the
Authorities to give her appointment in Allahabad College and the said order
E requires no interference.

7. Having heard the learned counsel for the parties, in our opinion, the
High Court was not justified in issuing a Writ of Mandamus directing the
appellants to appoint respondent No. I (writ petitioner) as Lecturer in
Geography in C.M.P. Degree College, Allahabad.
F
8. Before we consider the rival contentions of the parties, it would be '
appropriate if we refer to the statutory provisions. In 1980, an Act has been·
enacted known as the Uttar Pradesh Higher Services Commission Act, 1980
(hereinafter referred to as "the Act"). The Preamble of the Act declares that
it had been enacted with a view "to establish a Service Commission for the
G selection of teachers for appointment to the colleges affiliated to or recognized
by a University or for matters connecfed therewith or incidental thereto".
"Commission' is defined as the Higher Services Commission established under
Section 3. Chapter II deals with establishment of Commission, its composition,
terms of office and conditions of service, etc. Chapter III enumerates functions
H of the Commission and its powers and duties. Sections 12 and 13 as then
STATE OF U.P. v. NIDHl KHANNA [C.K. THAKKER, J.] 433

"r stood are material and may be re-produced: A
12. Procedure for appointment of teachers.-{)) Every appointment
as a teacher of any college shall be made by the management in
accordance with the provisions of this Act and every appointment
made in contravention thereof shall be void.
B
(2) The management shall intimate the existing vacancies and the
vacancies likely to be caused during the course of the ensuing
academic year, to the Director at such time and in such manner, as may
~ be prescribed.

Explanation.The expression "academic year" means the period of c
12 months commencing on July I.

(3) The Director shall notify to the Commission at such time and
in such manner as may be prescribed a subject wise consolidated lit
of vacancies intimated to him from all colleges.

(4) The manner of selection of persons for appointment to the
D
posts of teachers of a colleg, ! 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
E
it under sub-section (3) :

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

13. Recommendation of Commission. (I) The Commission shall, as F

- .,,.
. soon as possible, after the notification of vacancies to it under sub-
section (3) of Section 12, hold interview (with or without written
examination 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 as practicable, twenty-five per cent G
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 any examination is held.
r (2) The lists sent by the Commission shall be valid till the receipt
' of a new list from the Commission. H
434 SUPREME COURT REPORTS [2007] 6 S.C.R.

A (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 (I) for being appointed in the vacancy intimated under sub-
section (2) of Section 12.
B
(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
sub-section (3) of Section 12, the Director may intimate to the
management the name of a candidate from such list for appointment
<.
c in such vacancy.

(5) Notwithstanding anything in the proceeding provisions, where
abolition of any post of teacher in any college, services of the persons
substantively appointed to such post is terminated the State
Government may make suitable order for his appointment in a suitable
D
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 sub-
...
section (3) or sub-section (4) or sub-section (5) to the Candidate
E
concerned.

(emphasis supplied)

9. Section 14 imposes a duty on the management to appoint teachers
pursuant to the order passed by the Director. Section 15 empowers Director
F
to get information from the Management so as to enable him to take an
appropriate action. The Commission is also authorized to call for information
from the Management of any college as it thinks fit. It also has power to r
inspect records and registers of the Management.

G I 0. It is the case of the appellants that appellant No. 2, Director of
Higher Education informed respondent No. I as also R.G. College, Meerut on
November 23, 2002 that a vacancy had arisen in the said college, of Lecturer
in Geography due to non-joining by one Ku. Shradha Shrivastava. It was,
therefore, decided to appoint Ku. Nidhi Khanna, (respondent No. I herein :
writ petitioner) pursuant to the recommendation made by the Commission
--<
H ~
STATE OF U.P. v. NIDHI KHANNA [C.K. THAKKER, J.] 435
under sub-section (4) of Section 13 of the Act. The Management was, therefore. A
directed to issue an order of appointment by registered post within thirty
days from the date of receipt of the letter appointing respondent No. I as
Lecturer in Geography in the said college. Likewise, respondent No. I also
'
was informed by the Authorities by a registered letter. It is no doubt true that
according to respondent No. I, she had not received any such letter, but even B
in the High Court, the case of the appellants was that the letter was sent by
registered post to respondent No. I at the address supplied by the candidate,
i.e. respondent No. I, but she did not join Meerut college. It was, in these
circumstances that another person came to be appointed. It was, therefore.
submitted that respondent No. I had no right to insist for appointment after
the new list was prepared. C
11. The learned counsel for the appellants, in this connection, referred
to a decision of this Court in State of Bihar & Anr. v. Madan Mohan Singh
& Ors., (1994] Supp 3 SCC 308. A three-Judge Bench of this Court there held
that a select list prepared for filling up lf vacancies would be valid for filling
up of those vacancies for which it was prepared. For other vacancies, fresh D
list will have to be prepared and no appointment could be made from the list
-lC prepared for vacancies not advertised. In Madan Mohan Singh, applications
~ were invited by the Government for filling up of 32 vacancies of Additional
District & Sessions Judges against direct recruitment quota. A list of 128
candidates (32x4=128) was prepared, but since last two candidates secured E
equal marks, names of both were included at SI. No. 128 and 129. The High
Court conducted oral interview and a panel of 32 candidates was prepared.
Selected candidates were asked to appear for Medical Test on March 2, 1991.
The Full Court, however, sought to include further vacancies as well and
decided to fill up those vacancies that arose subsequently, from the merit list
which was already prepared. This Court held the action of the High Court F
invalid as no appointment could be made from a list in respect of vacancies
that arose subsequently.

12. A question similar to the one which we are called upon to decide,
came up for consideration before this Court as to interpretation of Sections
12, 13 and 14 of the Act in Kam/esh Kumar Sharma v. Yogesh Kumar Gupta G
& Ors., (1998] 3 SCC 45 : JT (1998) I SC 642. In Kamlesh Kumar, an
advertisement was issued on April 20, 1992 by the Commission for certain
vacancies of Principals. The appellant applied for the said post and was
included in the Select List. Due to certain reasons, however, he could not be
appointed. On July I, 1993, a post of Principal in one college fell vacant on H
account of retirement of the incumbent thereof. The Director of Higher
436 SUPREME COURT REPORTS (2007] 6 S.C.R.

A Education purportedly exercising power under sub-section (4) of Section 13
of the Act directed the Management of the College to appoint the candidate
who was in the Select List as the Principal. The action was challenged. It was
contended that no appointment could have been made as the advertisement
was issued on April 20, 1992 and the post of Principal fell vacant on July l,
B 1993. The Authorities, on the other hand, contended that the word 'otherwise'
occurring in Section 13(4) of the Act should not be read ejusdem generis and
was wide enough to cover and take within its sweep all vacancies including
the vacancies for which interview might not have been held. After quoting
the relevant provisions of the Act, this Court stated; "Having heard learned ,:_
counsel for the parties and having gone through the relevant Act and the
C Rules, we find that the aforesaid amendments were brought in to eliminate ad
hocism and irregular appointment of teachers. This is also to eliminate
favourtism, nepotism and other processes, through which unqualified,
undesirable persons were appointed excluding meritorious teachers. The proviso
to sub-section (4) of Section 12 provides for wide publicity through
advertisement for inviting talented persons for filling up such vacancies, as
D notified under sub-section (3). This was keeping in mind that whenever such
vacancy occurs selection should be from a larger sphere through wide
advertisements which would include large applicants competing. Both, ad hoc ~
appointment and appointment made for any vacancy not properly advertised -1
limits sphere where it may either as under the old Act to be regularised or
E under the principle of equity, sympathy to be regularised if a case be made
out which erodes the very foundation of a teaching institution by lowering
the teaching standard".

13. The Court observed;

F We find, after giving our careful consideration that in case the
appellant's argument is accepted by giving wider interpretation to the
word "otherwise", it would thwart the very object of the Act. In other
words it would permit the filling of the vacancy occurring which was
never advertised and a person in the select list panel, even though
not applying for any vacancy, would be absorbed. Hence it would be
G limiting the sphere of selection in contradiction to the object of the
provision to draw larger applicants by advertising every vacancy to
be filled in. We have no hesitation to say that any appointment to be
made on a vacancy occurring in the succeeding year in question for
which there is no advertisement under the provisions of sub-section
(4) of Section 12, the person on the panel list of preceding academic
H
STATE OF U.P. v. NIDHI KHANNA [C.K. THAKKER. J.] 437
year in question, cannot be absorbed or be appointed. The word A
"otherwise" has to be read as ejusdem generis that is to say in group
similar to death, resignation, long leave vacancy, invalidation, person
not joining after being duly selected. In other words, it would be a
case of unforeseen vacancies which could not be conceived under
Section 12(2). Section 12(2) conceives of a vacancy which is existing B
on the date the vacancy is to be advertised and which is likely to be
caused in future but constricted for a period ending in the ensuing
academic year in question. The words "likely to be caused" under
Section 12(2) are followed by the words "during the course of the
ensuing academic year" that is any person likely to retire by the end
of the academic year in question. In other words, such vacancies C
could be foreseen and not unforeseen. While vacancies under Section
13(4) are unforeseen vacancies which fall under the group, death and/
or resignation. Hence the word "otherwise" cannot be given the wide
and liberal interpretation which would exclude large number of expected
applicants who could be waiting to apply for the vacancies occurring
in the succeeding year in question. D
14. In our opinion, in view of the above legal position, the appellants
were right in their submission that respondent No. I could not be appointed
in pursuance of Advertisement No. 32 since she was selected and empanelled
pursuant to Advertisement No. 29.
E
15. The learned counsel for respondent No. I contended that there was
no fault on her part. It was also stated that though the Authorities asserted
that a communication was sent to respondent No. I at the address supplied
by her, she had never received such so-called communication. It was also
urged that the address at which the communication was sent was not correct F
address. It was only because of the fact that there was no communication by
the Director of Higher Education that constrained respondent No. I to approach
him as to what had happened to her appointment though she was at Serial
No. I in the Wait-List. Only at that time she was informed about the order
of appointment and her placement in Meerut College but since she did not
join duty, other person was appointed. Precisely because of subsequent G
development that respondent No. I approached C.M.P. College, Allahabad
and obtained 'No Objection Certificate' from the Management of that College.
The High Court, submitted the counsel, believed the case of respondent No.
1 and granted relief observing that it was the mistake of the Authorities for
which the candidate should not suffer. H
438 SUPREME COURT REPORTS (2007) 6 S.C.R.

A I6. 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. I 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 Kam/esh Kumar Sharma.
B
I 7. It is an admitted fact that the first respondent was selected and
empanelled in the Wait List pursuant to Advertisement No. 29 on July 19,
200 I. It is further not disputed that Advertisement No. 32 was thereafter
issued and Merit List was prepared on March 5, 2003 which was received by
C the Director on March 7, 2003. Once the above facts have been established,
the statutory provisions will come into play. Under the said provisions as
soon as the new list is prepared, the old list comes to an end. The High Court,
in view of the above facts, in our considered opinion, could not have issued
a writ of Mandamus directing the Authorities to act contrary to law. That is
not the ambit and scope of writ of Mandamus.
D
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.
E
KKT. Appeal allowed.