By the Court.—Heard Shri Ashok Khare, Senior Advocate assisted by Shri Manoj Kumar Singh, learned Counsel for the petitioner. Shri R.B. Pradhan, learned Standing Counsel appears for the respondents.

2. The petitioner applied for selections in response to the advertisement issued by U.P. Higher Education Service Commission for the post of Principals of Post Graduate Colleges in the State. The advertisement Nos. 34, 35 and 36 were superseded by Advertisement No. 39 inviting applications for appointment of Principals as single post in each college, to be filled up by direct recruit of 69 (male) and 18 (women) for equal number of colleges. The advertisement was clarified and amended by another advertisement dated February 23rd, 2006 increasing the number of posts of Principals and colleges to 81 (male) and 17 (women). The advertisement dated February 23rd, 2006 was published on February 26th, 2006.

3. The selections were delayed. The select list was declared on July 2nd, 2008. The petitioner is placed at No. 6 in the list. He has prayed for directions :

“Issue a writ, order or direction in the nature of mandamus directing the respondent No. 2 that while making the placement of Principals Post-Graduate Colleges in pursuance of the select list dated 2.7.2008 issued by the U.P. Higher Education Service Commission, Allahabad, the options given by the petitioner in representation dated 14.7.2008 may kindly be considered and placement be given to the petitioner accordingly.”

4. It is contended by Shri Ashok Khare that three out of five choices of the petitioner asked for at the time of interview, order of preference, are exhausted and that since no one has vested right nor any right has been created in favour of any candidate lower in merit than the petitioner in respect of colleges, which are still open, the petitioner has a right to give a fresh option.

5. Learned Standing Counsel sought instructions from the Director of Higher Education and submitted that the Director of Higher Education has discretion in the matter of placement under the U.P. Higher Education Service Commission Act, 1980 and the U.P. Higher Education Service Commission (Procedure for Selection of Teachers) Regulations, 1983. On 24.7.2008 we passed the order as follows :

“Learned Standing Counsel was required to seek instructions in the matter.

Shri R.B. Pradhan, learned Standing Counsel has produced a letter dated July 23, 2008 written to him by Dr. Miyan John, Director of Education (Higher Education) U.P. Allahabad, giving out the policy of the department, in allowing selected candidates for the post of principals of post graduate colleges for making their choices for placement.

It is stated in the letter that the advertised posts, according to the advertisement, can increase or decrease. The candidates are as such required to give their choices of colleges for placement at the time of interview. The change of choice at any later stage will obstruct the process of placement, and will make the opportunity of giving the choices at the time of interview redundant. He has referred to second proviso to sub-section (4) of Section 12 and Section 13 (4) of the U.P. Higher Education Service Commission Act, 1980 and para-5 of the U.P. Higher Education Service Commission Rules, 1983. The rule provides that the candidates shall be required to apply in prescribed form, or to give, if he so desires, the choice of not more than five colleges in order of preference. Where a candidate wishes to be considered for a particular college or colleges only and for no other he shall mention the fact in his application.

Shri Ashok Khare, learned Counsel for the petitioner has relied upon a judgment of Full Court of this Court in Dr. Vinay Kumar v. Director of Education (Higher), 2006 (1) ALJ 847 in which the Court clarified the differences of opinion in the judgments in Alka Rani’s case and Dr. Prakash Chandra Srivastava’s case.

Learned Standing Counsel has not obtained any instructions with