The appointment on the post of Teachers in aided and recognized Degree Colleges shall be made only on the recommendations of the U.P.H.E.S.C., and any appointment made contrary to the provisions of the Act would be null and void.

B.S. Chauhan, J.

The Petitioner, Dr. Diwarkar Singh has approached this Court by means of the present writ petition for a writ of mandamus directing the Respondents not to appoint regularly selected candidate Dr. Sudha Singh on the post of Lecturer (Hindi) in Raja Shree Krishna Dutt Post-Graduate Degree College, Jaunpur, where the Petitioner claims to have been appointed on daily wage basis.

2. Heard Shri T.P. Singh, learned senior counsel assisted by Shri Siddharth Singh, on behalf of the Petitioner and the learned standing counsel for Respondent Nos. 1 and 2.

3. It is stated on behalf of the Petitioner that a vacancy on the post of Lecturer (Hindi) fell vacant due to retirement of one Shri Devendra Pratap Upadhyay in Raja Shree Krishna Dutt Post-Graduate Degree College, Jaunpur (hereinafter called the institution), affiliated with the Purvanchal University. The aforesaid vacancy was advertised by the Management of the institution. In pursuance thereof, the Petitioner applied and was selected for appointment as Lecturer (Hindi) on daily wage basis vide appointment letter dated 26th July 2004 (Annexure-4). In the meantime, in pursuance of the advertisement published by the U.P. Higher Education Service Commission (hereinafter called the U.P.H.E.S.C.) selection for appointment on various posts of Lecturer was conducted, and in pursuance thereof, Dr. Sudha Singh has been selected for appointment as Lecturer (Hindi) in Raja Shree Krishan Dutt Post-Graduate Degree College, Jaunpur. It is contended on behalf of the Petitioner that since there are vacancies available on the post of Lecturer (Hindi) in other Degree Colleges of the State of U.P., Dr. Sudha Singh be accommodated in some other institution, and the working of the Petitioner may not be disturbed.

4. It is further contended that in view of the judgment of the Hon'ble Supreme Court in Bramho Samaj Education Society and Ors. v. State of West Bengal and Ors. JT 2004 SC 569, the U.P.H.E.S.C. has no right to make selection on the posts of Teachers in aided Degree Colleges, and consequently, the appointment of Dr. Sudha Singh is illegal and unsustainable. The management has an undefeasible right to make the appointment on the post of Teachers in the institution without any interference of the U.P.H.E.S.C. or the State Government.

5. The contentions raised on behalf of the Petitioner are devoid of merit. From the appointment letter which has been issued in favour of the Petitioner and as admitted in para 5 of the writ petition, the appointment offered to the Petitioner was subject to the condition that he would continue so long as a regularly selected candidate recommended by U.P.H.E.S.C. is not appointed. Since the Petitioner has accepted the appointment with open eyes on the aforesaid conditions it is not open to the Petitioner to challenge the said condition and question the appointment of Dr. Sudha Singh on the recommendations of the U.P.H.E.S.C. Even otherwise, the judgment of the Hon'ble Supreme Court in the case of Brahmo Samaj Education Society (supra) is clearly distinguishable. The legality and validity of the U.P. Higher Education Service Commission Act, 1980, has been upheld by the Hon'ble Supreme Court in the various judgments. It has been further held that Section 16 of the aforesaid Act specifically provided that the appointment on the post of Teachers in aided and recognised Degree Colleges shall be made only on the recommendations of the U.P.H.E.S.C., and the appointment made contrary to the provisions of the aforesaid Act would be null and void. [Vide Dr. Keshav Ram Pal v. U.P. Higher Education Service Commission, Allahabad and Ors. 1986 UPLBEC 262 Kamlesh Kumar Sharma Vs. Yogesh Kumar Gupta and others, (1998) 3 SCC 45 and Kiran Gupta and Ors. v. State of U.P. and Ors. 2000 (4) AWC 3223 (SC)]. The case in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, AIR 2003 SC 355, on which much reliance has been placed by the Apex Court in Brahmo Sa