The Director of Higher Education does not have the authority to appoint a candidate from a list prepared for a different academic year and that the vacancy should have been notified and advertised before any selection could be made.

A serious challenge has been extended to the impugned order dated 20-7-1993 passed by the Director of Higher Education, Allahabad making placement of opposite party No. 5 Dr. Kamlesh Kumar Sharma as the Principal, Maharaj Singh College, Saharanpur, in alleged exercise of powers under Section 13 (4) of the U. P. Higher Education Service Commission Act, 1980 (for short, the Act ). The ultimate question arising for consideration would be as to whether the Director is empowered under the Act to pick up a name from the list of candidates sent by the Commission even for fulfilling a post of teacher/principal of a college which vacancy was non-existent when the said list was prepared and which vacancy was never advertised nor accord ed due publicity in accordance with the provisions of the Act.

2. The relevant facts lie in a narrow compass. Maharaj Singh College (for short, the College) is a Post- Graduate Degree College at Saharanpur and is governed by the provisions of the U. P. State Universities Act (for short, University Act) and First Statutes of Meerut University framed under the University Act. One Dr. R. P. Sharma, who was the regular principal of the college retired on 9-7-1992 but worked upto 30-6-1993 and the vacancy accru ed actually on 1-7-1993. In pursuance of the First Statute No. 13-20, the Management of the college decided at its meeting on 22-6-1993 to appoint the petitioner Dr. Y. K. Gupta as officiating principal. A copy of the letter is Annexure 1 to the writ petition, the genuineness of which is admitted to the respondents. It has been stated in paragraph No. 8 that the petitioner took charge on 30-6-1993 from the out-going principal Sri R. P. Sharma. This averment is admitted.

3. The U. P. Higher Education Service Commission, a statutory crea tion under the provisions of the Act, had published an Advertisement No. 18 of 1992 on 20-4-1992 whereby vacancy for thirteen posts of principals in Post-Graduate Colleges were advertised. A very relevant averment exist in para graph No. 13 of the writ petition. "that in the aforesaid advertisement name of the institution of the respondent No. 3 was not advertised and even at that very time no vacancy on the post of principal in the institution was in exis tence". The reply of the Director is that "the contents of paragraph No. 13 of the writ petition are not disputed except that, as the petitioner was not working as a principal in a substantive capacity, the vacancy for the principal deemed to exist and as such, attracted the provisions of 13 (4) of the Amended Act, 1992 which calls upon the Director to appoint a Principal on regular basis. " A select list of 13 candidates was published by the Commission on 8-4-1993. The Commission has also sent names of five more candidates being 25% extra candidates as envisaged by Section 13 (1) of the Act. The counter affidavit on behalf of the Commission says : It is significant to men tion that Dr. Kamlesh Kumar Sharma had applied in pursuance of the Adver tisement. No. 18 and he has been found suitable by the Interview Board and he has been placed in the list of successful candidates at serial No. 6. It is pertinent to mention that the list prepared by the Commission is on the basis of merit and the names placed in the said list are also in order of merit. " Further it says" In the instant case, Dr. K. K. Sharma was at the serial No. 6 in order of merit. Thus his name has been recommended for the post of principal in Maharaj Singh Post-Graduate College, Saharanpur. The petitioner has no right to hold the post of principal, as the post was neither advertised nor the Vice-chancellor has given his approval, In fact, no selection has taken place. Thus the appointment of the petitioner as officiating principal is without any autho rity. " (See paragraph Nos. 8,9,10 and 11 of the counter affidavit sworn by Sri J. K. Srivastava on behalf of the Commission. The Director has passed the impugned order dated 20-7-1993, relevan