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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3361 OF 2015

Veerendra Kr. Gautam and others               …Appellants

VERSUS

Karuna Nidhan Upadhyay and others             …Respondents  With

C.A.  No.  3363/2015,  C.A.  No.  3364/2015,  C.A.  No. 3365/2015, C.A. No. 3366/2015, C.A. No. 3367/2015, C.A. No. 3368/2015, C.A. No. 3369/2015, C.A. No. 3370/2015, C.A.  No.  3371/2015,  C.A.  No.  3372/2015,  C.A.  No. 3373/2015, C.A. No. 3374/2015, C.A. No. 3375/2015, C.A. No. 3376/2015, C.A. No. 3377/2015, C.A. No. 3378/2015, C.A. No. 3379/2015

J   U  D  G   M   E   N   T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. These appeals are directed against the common judgment of

the Division Bench of the High of Allahabad dated 23.04.2012 in

Writ  Application  No.34198  of  2008  etc.  batch,  by  which,  the

Division  Bench  dealt  with  the  challenge  made  to  the  selection

dated 15.05.2007, to the post of Principals in the Degree Colleges

in the State of Uttar Pradesh and the selection dated 30.06.2008

and 02.07.2008 to the post of Principals in different Post Graduate

Colleges also in the State of Uttar Pradesh.  While dealing with the

said challenges made, the Division Bench ultimately set aside the

select list dated 30.06.2008 and 02.07.2008 as well as the select

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list dated 15.05.2007 in respect of the Principals to P.G Colleges

and  degree  colleges  respectively  by  allowing  W.P.No.34198  of

2008  along  with  connected  writ  petitions  of  Group-I  and  writ

petition No.44358 of 2007.  By the very same impugned judgment

the  Division  Bench  also  dealt  with  another  writ  petition  in

W.P.No.70062 of 2006, by which, some of the selected candidates

applied  for  Mandamus  to  give  effect  to  the  recommendations

dated  15.05.2007  and  simultaneously  prayed  for  quashing  the

order of the State Government dated 12.06.2007, by which the

State  Government  appointed  the  Divisional  Commissioner,

Allahabad to  hold  the  preliminary  enquiry  regarding  allegations

against the selection dated 15.05.2007.  In the very same writ

petition,  prayer  was  also  made  for  quashing  the  order  dated

16.06.2007  of  the  Divisional  Commissioner  by  which  certain

information  was  called  for  from  the  Uttar  Pradesh  Higher

Education Services Commission, Director of Education, who also

issued a direction  not  to  give  any posting in  pursuance of  the

select list dated 15.05.2007. 2. Brief  facts which are required to be stated are that there

were many number of post graduate and degree colleges situated

in the State of U.P. affiliated to the University Governed by U.P.

State Universities Act, 1973.  The selection and appointment in

the post graduate and degree colleges were earlier made by the

respective colleges in accordance with the provisions of the U.P.

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State Universities Act, 1973 (hereinafter called the ‘1973 Act’). As

there  were  numerous  complaints  regarding  the  selection  of

candidates for both the post of Teachers as well as the Principals in

the post  graduate  colleges  as  well  as  the  degree  colleges,  the

State  Government  enacted  U.P.  Higher  Education  Services

Commission  Act,  1980  (hereinafter  called  the  1980  Act)  to

establish a Service Commission for the selection of Teachers which

includes  the  post  of  Principals  for  appointment  to  the  colleges

affiliated to or recognized by the University under the 1973 Act.

The Commission consisted of a Chairman and not less than two

and not  more than six members to  be appointed by the State

Government.  The management of the colleges were expected to

intimate the existing as well as future vacancies in the course of

the ensuing academic year to the Director of Education and the

Director  in  turn  was  required  to  notify  the  vacancies  to  the

Commission.  The Commission thereafter undertakes the process

of selection in accordance with the Act, Rules and Regulations. At

this juncture, it is necessary to note the relevant provisions of the

1980 Act as well as the relevant provisions in the Regulations and

the Rules formulated under the provision of the 1980 Act.  3. Under  Section  4(1)  of  1980  Act  it  is  stipulated  that  the

Commission shall consist of a Chairman and not less than two and

not more than six other members to be appointed by the State

Government.   Sub  Section  (2)  of  Section  4  prescribes  the

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qualification for appointment as a Chairman.  What is relevant for

our purpose is Section (4)(2)(e) as per which, a person will be

held to be qualified to be appointed as Chairman, if he is in the

opinion of the State Government an eminent person having made

valuable contribution in the field of education. Sub-Section (2-a) of

Section 4 prescribes the qualification for appointment of members.

Here again, under Section 4(2-a)(g) it is stipulated that a person

shall be qualified for appointment as a member if in the opinion of

the  State  Government  he  is  an  eminent  person  having  made

valuable contribution in the field of education.   Section 8 of the

Act prescribes that no act or proceeding of the Commission shall

be deemed to be invalid merely on the ground of any defect or

irregularity in such act or proceeding not affecting the substance.

It also stipulates that such invalidity will  not take place on the

ground  of  any  vacancy  or  defect  in  the  constitution  of  the

Commission or any defect or irregularity in the appointment of a

person acting as a member thereof.  The powers and duties of the

Commission have been set out in Section 11. Under Section 11(b),

the  Commission  is  empowered  to  conduct  examinations,  where

consider  necessary,  hold  interviews  and  make  selection  of

candidates for being appointed as such Teachers.  Under Section

12(4) it is stipulated that the manner of selection of persons for

appointment to the post of a Teacher of a College shall be, as may

be  determined  by  the  Regulations.  Under  Section  31,  the

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Commission has been empowered, with the previous approval of

the State Government, to make Regulations, among other things

for  conducting  examinations,  holding  interviews  and  for  laying

down  the  procedure  to  be  followed  by  the  Commission  for

discharging its duties and performing its functions under the Act.   4. By virtue of the powers under Section 31 of the 1980 Act,

the  Uttar  Pradesh  Higher  Education  Services  Commission

(Procedure  for  Selection  of  Teachers)  Regulations  1983

(hereinafter called the 1983 Regulations) came to be framed and

was notified on 20.08.1983.  Regulation 2(h) defines a ‘Teacher’ to

mean a person employed for imparting instructions in a college

and  includes  a  Principal.  The  qualification,  experience  etc.,  for

appointment as a Teacher has been set out in Regulation 3, as per

which,  the  minimum qualification for  appointment  of  a  Teacher

shall be as given in the Statutes referred to in Section 50 of the

Uttar  Pradesh  State  Universities  Act,  1973.  Regulation  6  is  an

important provision which requires to be considered in detail  in

these  appeals  and  therefore  the  whole  of  Regulation  6  is

extracted, which reads as under: “6.  Procedure  for  selection.—  (1)  The

Commission shall  scrutinize the applications  and call for interview such number of candidates as it may consider proper : Provided that, if on account of excess number of applications or for any other reasons, the Commission considers it desirable to limit  the  number  of  candidates  to  be  called  for interview, it may—  

(i)  in the case of the post of a teacher,  not being the post of principal, either hold preliminary

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screening on the basis of academic record or hold a  competitive  examination,  so  however  that  no competitive examination shall be held before the recruitment year 1984.  

(ii) in the case of the post of the Principal, hold preliminary  screening  on  the  basis  of  academic record, teaching the administrative experience ;

Provided  further  that  the  number  of candidates  to  be  called  for  interview  for  any category  of  post  shall,  as  far  as  possible,  be between three to eight times the vacancies as the Commission may consider proper.  

(2)  The  Commission  shall  interview  the candidates  in  accordance  with  the  criteria, minimum standards and guidelines set out by it. The Commission  may,  if  it  considers  necessary, hold practical test also as part of interview.  

(3) No candidate shall be recommended unless at least one expert concurs with the selection.  

(4)  The  Commission  shall  prepare  two separate lists of selected candidates, one of the women candidates only and the other a ‘general list’  of  all  the  candidates  (including  women candidates included in the first list). The names of women candidates who specifically opt not to be posted in women’s colleges shall not be included in the list of women candidates. The names of the candidates  in  the  two lists  shall  be arranged in order of merit and the number of names shall not be more than three times the number of vacancies or the number of vacancies plus four whichever is more.”  

5. Under  the  Uttar  Pradesh  Higher  Education  Services

Commission  (Procedure  and  Conduct  of  Business)  Regulations

1983, provision of Constitution of Interview Board, Constitution of

panel of experts in the Interview Board are all set out.  These are

the  Statutory  provisions  which  are  required  to  be  noted  while

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dealing  with  these  appeals  where  a  challenge  to  the  Division

Bench order is made.   6. The  Division  Bench  having  considered  the  various

submissions  of  the  respective  parties  formulated  the  following

issues for consideration which are as under: “1.  Whether  the  writ  petition  No.  34198  of

2008, Dr. Karuna Nidhan and another Vs. State of U.P. and others is liable to be dismissed since the petitioner's earlier two writ petitions were dismissed as  withdrawn  on  3.7.2008  without  obtaining  any leave to file a fresh writ petition?  

2.  Whether  the  appointment  of  Members  of U.P.  Higher  Education  Service  Commission respondents No. 4 to 13 in writ petition No. 34198 of 2008  were  invalid  and  the  said  appointments  are liable to be set aside?  

3.  Whether  the  members  of  selection  Board should  be  higher  in  rank  and  stature  to  the candidate whom they are going to interview?  

4.  Whether  U.P.  Higher  Education  Services Commission  has  framed  appropriate  guidelines providing  for  criteria,  minimum  standard,  for conducting selection as provided by Regulation 6(2) of Regulations 1983?  

5.  Whether  the  Commission  has  truthfully followed  the  screening  guidelines  fixed  by  it  for calling the candidates to appear in the interview for the selection?  

6. Whether the Commission having fixed the ratio of candidates to be called i.e. 1:8 with regard to  advertisement  No.  39  vide  its  meeting  dated 13.5.2008 was justified in calling the candidates in excess of ratio 1:8?  

7. Whether several candidates who had been called for  interview and selected did not fulfill  the minimum qualification as required?  

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8. Whether five women candidates, who had applied  for  being  considered  against  the  male category  posts  were  illegally  shifted  to  the  post meant for female category permitting five candidates to be included in the select list, who could not have been otherwise included in the select list against the Principal of male category?

 9.  Whether  the  procedure  adopted  by  the

Commission in conducting selection of Principals of post  graduate  and  degree  colleges  was  fair, reasonable and in accordance with the provisions of the Act, Regulations and the Guidelines?  

10. Whether against the post of Principal which is single post in an institution, horizontal reservation for  physically  handicapped  and  dependent  of freedom fighter is applicable and the selection made of  reserved  categories  candidates  namely; dependent  of  freedom  fighter  and  physically handicapped is valid who otherwise could not have been included in the select list?  

11.  Whether  the  petitioners  who  had participated in the interview are estopped by their conduct  and  cannot  be  allowed  to  challenge  the selection  on  the  post  of  Principal  declared  on 15.5.2007 and 30.6.2008/2.7.2008?  

12. Whether the State Government had power and  jurisdiction  to  direct  for  inquiry  regarding process  of  selection  conducted  by  the  Higher Education  Service  Commission  in  exercise  of  its power either under section 6 of the Act or in exercise of  the  executive  power  as  provided  under  the Constitution?  

13. To what relief the petitioners are entitled in these writ petitions?”

7. On issue No.1 the Division Bench took the view that the writ

petition was maintainable, that the writ petitioners were entitled to

challenge  the  ultimate  selection  made  in  the  select  list  dated

15.05.2007, 30.06.2008 and 02.07.2008. As far as the challenge

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made  based  on  invalid  appointment  of  the  Members  of  the

Commission, who were arrayed as respondent Nos.4 to 9 in the

writ petition, the Division Bench found that those respondents had

since  subsequently  ceased  to  be  members  of  the  Commission,

held  that  there  was  no  scope  to  examine  the  validity  of  their

appointment as members of the Commission, but applying the de

facto  doctrine,  proceeded  to  hold  that  strict  analysis  of  the

selection made by those members was necessitated.   8. On the above said basis, the Division Bench proceeded to

deal with the other issues formulated by it.  The Division Bench in

its  ultimate analysis  held that  there were  serious lapses in the

procedure followed by the Commission in making the selection for

the  post  of  Principals  of  the  Post  Graduate  as  well  as  Degree

colleges in as much as the Regulation 6 of the 1983 Regulation

was not strictly followed and that the necessary guidelines under

the said Regulation were not formulated both for  screening the

candidates as well as in the matter of holding the interview, apart

from serious violation in the matter of calling of the candidates for

interview  beyond  the  prescribed  limit  as  provided  under  the

Regulation 6.  It was on the above said basis, the Division Bench

ultimately, set aside the entire selection and directed the State

Government to redo the selection afresh. 9. Before  proceeding  further  it  will  be  necessary  to  make

reference  to  an  earlier  judgment  of  this  Court  in  Civil  Appeal

No.2351 of 2011 along with connected civil appeals and transfer

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petitions reported in  State of  Uttar Pradesh and others Vs.

Bharat Singh and others - (2011) 4 SCC 120 wherein, this

very  selection  came  to  be  considered  under  different

circumstances.   In  the  said  appeal  the  challenge  was  to  a

judgment of the Allahabad High Court dated 07.08.2008, by which

the  High  Court  directed  the  Director, Higher  Education  to  give

effect to the recommendation made by the U.P. Higher Education

Service Commission for the post of Principals in aided / affiliated

degree colleges. The State Government was aggrieved in as much

as  the  State  Government  had  earlier  directed  for  holding  an

enquiry into the misfeasance in the matter of selection made by

the Commission, which was the subject matter of challenge before

the High Court. This Court while holding that the selection was for

the post of Principal to different colleges and since the selection

was being made for  a single  post,  Rule  of  Reservation will  not

apply, that the order dated 12.06.2007 issued by the Government

appointing the Divisional Commissioner, Allahabad as an Enquiry

Officer to hold an enquiry into the validity of selection process and

the  report  submitted  by  the  said  Enquiry  Officer,  shall  stand

quashed  and  the  order  of  the  High  Court  to  that  effect  was

affirmed.   However,  this  Court  took  note  of  the  pending  writ

petitions in the High Court wherein, challenge to the selection was

substantially  raised  and  held  that  the  High  Court  was  free  to

examine  all  issues  regarding  the  selection  process  in  question

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including  the  validity  of  the  procedure  followed  in  making  the

same. Significantly, this Court took note of the undertaking made

by the selected candidates during the pendency of the appeal who

were appointed to the post of Principals pursuant to the interim

orders of this Court to be permitted to be impleaded as parties in

the writ petitions where the selection was under challenge.  The

interim order dated 20.11.2008, stipulated that in the event of the

selection being set aside, all those candidates will stand reverted

to  the  post  of  Readers  and  that  whatever  additional  payments

received by them shall be recoverable from them.  Further in the

said judgment dated 08.03.2011, it was observed that in the writ

petitions filed by the aggrieved candidates before the High Court,

all  aspects  of  the  matter  is  open  for  examination,  in  which,

everyone  connected  with  the  selection  process  will  have  an

opportunity to place his / her point of view.   10. Keeping the above judgment dated 08.03.2011, passed in

C.A.No.2351  of  2011,  we  proceeded  with  the  hearing  of  these

appeals.  We heard the submissions of Mr. S. Gurukrishna Kumar,

Mr. Amarendra Saran and Mr. Rajiv Dutta, learned senior counsels

and Mr. Sanjay Mani Tripathi, Mr. Vijay Kumar, Mr. Manoj K. Mishra,

Mr. Sumit Kumar, Mr. Makarand D. Adkar, Mr. Yatendra Sharma for

the appellants, Mr. Jaideep Gupta, learned senior counsel for the

Commission,  Mr.  C.  U.  Singh  learned  senior  counsel  for

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respondents  1  and  2  and  Mr. Jitendra  Mohan  Sharma,  learned

senior counsel for the intervenors.    11. Mr. S. Gurukrishna Kumar, in his submissions after referring

to  the  relevant  facts  and  the  regulations  submitted  that  the

Regulations  gave  the  discretion  to  the  Commission  whether  to

limit the number of candidates or not, the ratio prescribed in the

Regulations under the proviso to Regulation 6(1) viz., 3 to 8 times

of the candidates is only a guideline and not a Rule and, therefore,

not  to  be  mandatorily  applied  for  making  the  selection,  that

exceeding a ratio by itself cannot be held to be arbitrary, that this

was not a case where no guidelines were in place and that under

Regulation 6(1), the Commission had every power to limit or not

to  limit  the  number  of  applicants.   The learned  senior  counsel

submitted that the Commission gave ample reasons for the ratio it

adopted in making the selection and that by making reference to

some of the selected candidates alone, the Division Bench ought

not  to  have  interfered  with  the  whole  selection.   The  learned

senior  counsel  ultimately  submitted  that  the  withdrawal  of  the

earlier writ petitions barred the filing of the present writ petition

when  such  withdrawal  was  without  any  reservation,  that  High

Court having written a specific finding that the action taken by the

members of the Commission 4 to 9 were protected by de facto

doctrine ought not to have struck down the selection, that there

was nothing alleged against the appellants as regards their merits

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or demerits  and therefore their  selection should not have been

interfered with.  In support of his submissions, the learned senior

counsel  relied  upon  the  decisions  reported  in  Gokaraju

Rangaraju v. State of Andhra Pradesh -  1981 (3) SCC 132,

Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors. -  1981

(1)  SCC  722, Dr.  Keshav  Ram  Pal,  Reader  and  Head  of

Sanskrit  Department  and  Offg.  Principal,  Lajpat  Rai

Post-Graduate College, Sahibabad, Distt. Ghaziabad, U.P. v.

U.P.  Higher  Education  Services  Commission,  Allahabad  &

Ors.  -  1986  (1)  SCC  671, State  of  Madhya  Pradesh  v.

Narmada  Bachao  Andolan  and  Anr.  -  2011  (7)  SCC  639,

Ashok Kumar Yadav and Ors. v. State of Haryana & Ors.-

1985 (4) SCC 417 and Bharat Singh (supra).   12. Mr. Rajiv  Dutta,  learned  senior  counsel  appearing  for  the

appellants in C.A.No.3361 of 2015 in his submissions contended

that  the  High  Court  had  gone  beyond  the  pleadings,  the  writ

petitioners having participated fully were not entitled to challenge

the  process  subsequently  and  that  the  appellants  having  been

appointed  in  2008  and  working  till  date  and  there  being  no

allegation of any adverse report against them, their appointments

should not be interfered.  The learned senior counsel relied upon

Madan Lal & Ors. v. State of J & K and Ors. -1995 (3) SCC

486  and  N.T.  Devin  Katti  and  Ors.  v.  Karnataka  Public

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Service Commission & Ors. - 1990 (3) SCC 157 in support of

his submissions. 13. Shri Amarendra Saran, learned senior counsel appearing for

the  appellants  in  C.A.No.3366  of  2015  by  making  specific

reference  to  the  details  of  each  of  the  appellants,  sought  to

contend that the High Court factually erred in holding that those

appellants  did  not  satisfy  the  prescribed  qualifications  such  as

experience,  possession  of  necessary  qualification  etc.,  and

therefore  the  judgment  is  liable  to  be  set  aside.   The  learned

senior counsel submitted that each and every finding in respect of

those appellants  was  erroneous and against  the  material  facts,

that the finding of the High Court that the candidate did not have

the  requisite  qualification  was  not  a  correct  finding,  that  the

finding that more candidates were called is based on a misreading

of  the  Regulation  6(1)(ii)  and  the  further  finding  that  the

Commission  members  were  lower  in  rank  and  status  was  not

tenable  and  that  the  finding  on  the  principle  of  estoppel  was

contrary to law. 14. The learned senior counsel representing the other appellants

adopted  the  arguments  of  Mr.  S.  Gurukrishna  Kumar  and  Mr.

Amarendra Saran.  15. Mr. Makarand D. Adkar, learned counsel for the appellant in

C.A.3363 of 2015 submitted that the said appellant top the list in

women’s  list,  the  appellant  was  posted  in  women’s  college

exclusively  meant  for  women and therefore  the writ  petitioners

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have no locus to challenge the selection of the said appellant. In

other respects the learned counsel adopted the arguments of the

other senior counsel. 16. Mr.  Jaideep  Gupta,  learned  senior  counsel  for  the

Commission  submitted  that  two  groups  of  petitioners  made  a

challenge  and  that  one  group  went  to  Court  at  the  time  of

advertisement but withdrew without reserving any liberty but later

filed  substantive  writ  petition  after  the  interview  result,  where

grounds  were  raised  even  relating  to  the  process  of  selection.

According  to  the  learned  senior  counsel  the  other  group never

raised  a  challenge  to  the  advertisement  and  came  after  the

interview.   According  to  learned  senior  counsel,  principle  of

estoppel operate differently in that those who participated in the

interview are estopped from raising a challenge which is covered

by the decision of this Court reported in Madan Lal (supra).  As

far as those who filed the writ  petition and withdrew the same

without  liberty,  the  Sarguja  Transport  Service,  v.  State

Transport Appellate Tribunal, Gwalior and Ors. - AIR 1987 SC

88 principle will apply and that the reasons for the withdrawal of

the  writ  petition  were  irrelevant  and  they  were  not  entitled  to

challenge the selection.  The learned senior counsel submitted that

the Rules only provided for interview and there was no written test

prescribed and therefore where the selection is based on academic

qualification  and  interview,  there  is  no  limit  for  prescription  of

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marks for interview.  The learned senior counsel argued that the

screening guidelines were issued as early as on 06.11.2006 both

for degree colleges as well as post graduate colleges and that for

post  graduate  colleges  by  subsequent  proceedings  of  the

Commission  dated  10.04.2008,  13.05.2008  and  22.05.2008,

guidelines were altered and cut-off marks were fixed as per the

guidelines and necessary resolutions were passed for the ultimate

cut-off mark of 34.1.  The learned senior counsel would contend

that  the  Commission  taking  into  account  the  total  number  of

applications  received  decided  to  call  all  the  candidates  for

interview irrespective  of  the  cut-off  marks  as  it  had  possessed

necessary powers under Regulation 6.  The learned senior counsel

submitted that the decision was not with any ill-motive, in order to

hold that the whole selection should be set aside.  On Regulation

6(2) the learned senior counsel submitted that from a reading it

cannot be said that without any guidelines U. P. Higher Education

Services  Commission  cannot  carry  on  with  the  interview,  that

where there are criteria, it should be followed and that guideline

have been framed as early as on 06.10.1983, which have been

duly followed.  The learned senior counsel submitted that the said

1983 guidelines were also accepted by this Court in the judgment

reported in  Dr. Keshav Ram Pal (supra).  The learned senior

counsel further contended that those guidelines were sufficient for

the Commission to make the selection in the interview.  As regards

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the  composition  of  members,  the  learned  senior  counsel

contended  that  the  High  Court  having  applied  the  de  facto

doctrine, there was no scope for the High Court to interfere with

the selection.      17. As against the above submissions, Mr. C. U. Singh, learned

senior counsel appearing for the contesting private respondents, in

his  submissions,  while  meeting  the  arguments  on  estoppel,

contended that there were 16 writ petitions in which the Division

Bench  passed  the  impugned  judgment  and  therefore,  the

withdrawal of two earlier writ petitions will not have any effect on

this judgment. The learned senior counsel also submitted that in

any  event,  in  Bharat  Singh’s  case (supra) while  issuing

directions for the disposal of the writ petitions, this Court observed

that  opportunities  should  be  extended  to  all  concerned  and

therefore  the  present  case  is  completely  different  one and not

covered by any of the judgments passed earlier in order to apply

the  principle  of  estoppel.   The  learned  senior  counsel  also

submitted that the withdrawal of the earlier writ petition was not

with an intent of forum shopping since that writ petition was filed

at the stage when interview was not held and since by the time

the writ petition was taken up, the whole interview was over, the

writ  petition  was  withdrawn  and  fresh  writ  petition  was  filed

challenging the whole selection.  The learned senior counsel then

contended that the High Court after finding that respondents 4 to

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9 had already ceased to  be the members of  the Commissions,

there was no scope to consider the prayer for  quo warranto and

consequently  applying  the  de  facto doctrine  made  a  deeper

scrutiny of the whole selection and gave valid reasons for setting

aside the selection. The learned senior counsel pointed out that

the  grounds  raised  in  the  writ  of  quo  warranto were  very

formidable grounds in as much as the appointment of respondents

4 to 9 were not in accordance with Section 4(2)(e) or 4(2-a)(g) of

the 1980 Act. The learned senior counsel therefore contended that

the course adopted by the High Court in having made a deeper

scrutiny and its findings on each one of the issues, to hold the

selection  invalid  was  well  justified.  The  learned  senior  counsel

relied upon the decision reported in  State of Punjab Vs. Salil

Sabhlok and others - (2013) 5 SCC 1. 18. Mr.  Jitendra  Mohan  Sharma,  learned  senior  counsel  who

appeared for the petitioner in a writ petition before the High Court

and  who  has  filed  I.A.No.15/2013  in  C.A.3361  of  2015  for

intervention, submitted that when the whole process of selection

was  challenged,  the  consideration  of  individual  cases  is  of  no

consequence.  The learned senior counsel pointed out that when

the term of invalid members viz., respondents 4 to 9 before the

High Court was over, the High Court was not in a position to deal

with  the  issue  of  quo  warranto and  consequently,  it  made  a

thorough examination of the process of selection as to its validity

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and  found  the  same to  be wholly  invalid  for  setting  aside  the

same.   The  learned  senior  counsel  placed  reliance  reported  in

Union of India & Ors. v. O. Chakradhar -  (2002) 3 SCC 146,

Krishan Yadav (supra) and Bharat Singh (supra) in support of

his submissions.  19. Having heard the respective counsel  and having bestowed

our serious consideration to various submissions and having gone

through the impugned judgment, we feel that it will be appropriate

to note the sum and substance of various submissions and find out

whether  there  is  any scope for  interference with  the  judgment

impugned in this case. The submissions of the learned counsel for

the appellants can be noted as under: (i) Since  some  of  the  contesting  private

respondents  had moved the High Court  earlier  by

way of a writ petition raising certain challenges to

the  very  same  selection  and  since  those  writ

petitions were withdrawn without any reservation or

liberty  asked  for,  the  subsequent  writ  petitions

raising a challenge to the very same selection was

hit by the principle of Estoppel.  Reliance was placed

upon the judgment reported in Sarguja Transport

Services (supra). (ii) When once the High Court decided to apply

the de facto doctrine on finding that respondents 4

to  9  ceased  to  hold  office  as  members  of  the

Commission, it ought not to have interfered with the

selection, by applying the principles laid down in the

judgment  reported  in  Gokaraju  Rangaraju

(supra).

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(iii) The Commission gave reasons for the ratio

it  adopted  while  making  the  selection,  that  is

between  06.11.2006  and  22.05.2008  viz.,  on

06.11.2006,  10.04.2008,  13.05.2008  and

22.05.2008, the Commission fixed the norms after

the advertisements, reframed the guidelines for the

PG  college  selection,  the  cutoff  index  was  fixed

which was subsequently altered,  all  of  which were

done well before the interview was held. (iv)The selection made by the commission was

in  accordance  with  Regulation  6  of  the  1983

Regulations,  that  there  were  guidelines  both  for

initial screening as well as for evaluating the merits

at the time of interview. (v)  As far as the individual cases who are

the appellants  in  C.A.3363 of  2015 against  whom

specific  findings  have  been  rendered  by  the  High

Court  to  hold  that  their  selection  was  bad,  the

question for consideration is whether such finding of

facts are true or not. (vi)Even  if  the  individual  cases  where  the

Division Bench held that they were not qualified, but

yet selected and assuming such conclusion drawn by

the Division Bench was correct,  that will  not have

any effect on the entire selection. (vii)On  the  issue  pertaining  to  reservation,  it

was pointed out that in the earlier round i.e. in the

judgment reported in  Bharat Singh (supra),  this

Court  ruled  that  since  the  posts  of  Principal  are

single  post,  rule  of  reservation  will  not  apply.

Therefore, when no reservation was possible, if any

of the candidate has been appointed on the ground

of  reservation,  the  same  will  not  survive,  but

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applying the Rule of Reservation, four candidates got

the benefit, of the four candidates one candidate did

not  join,  while  one joined  and left  and one other

person had resigned and one is going to retire and

therefore  on  that  score,  there  was  no  scope  for

interference. 20. As  far  as  the  first  submission  is  concerned,  the  same is

raised based on the doctrine of estoppel.  The contention was that

earlier prior to the holding of the interview, two writ petitions were

filed viz., W.P.Nos.26501 and 27600 of 2008, which were simply

withdrawn on 03.07.2008. It is therefore contended that when the

very same selection was the subject matter of challenge in those

writ petitions and the writ petitions were withdrawn without any

reservation and without asking for any liberty to raise a challenge

at a later point of time, the writ petitioners were estopped from

filing the present writ petition viz., W.P.No.34198 of 2008.  The

said contention was rejected by the High Court by holding that the

earlier writ petition was filed before the interview commenced and

that when subsequently, after the interview, select list for the post

of  Principals  of  post  graduate  Colleges  was  declared  on

30.06.2008 and 02.07.2008, the petitioners choose to withdraw

those writ petitions and thereafter file the present W.P.No.34198 of

2008.  The Division Bench therefore held that the withdrawal of

the earlier writ petition without any reservation did not cause any

prejudice in as much as at the time when the earlier writ petition

was filed, the select list was not announced and therefore when at

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the stage prior  to the interview, those writ  petitions were  filed

there was nothing wrong in the writ petitioners moving the High

Court  subsequent to the declaration of  the results  by raising a

challenge to the select list.  We do not find anything wrong with

such a conclusion arrived at by the Division Bench of the High

Court.  That apart, in the case on hand, as rightly pointed out by

Mr. C. U. Singh learned senior counsel for the contesting private

respondents, there were as many as 17 writ petitions, which were

pending  before  the  High  Court  along  with  W.P.34198  of  2008.

Therefore  withdrawal  of  the  earlier  two  petitions  by  the  writ

petitioner in W.P.No.34198 of 2008 could not have in any manner

prevented the High Court from examining the correctness of the

challenge made in the other writ  petitions.  Further, in  Bharat

Singh’s  case  (supra),  when  this  Court  in  its  order  dated

08.03.2011, passed in C.A.2351 of 2011, observed that in the writ

petitions filed by the aggrieved candidates before the High Court

all aspects of the matter shall be open for examination, in which

everyone  connected  with  the  selection  process  will  have  an

opportunity  to  place his/her  point  of  view, we do not  find any

serious  impediment  in  the  case  of  the  writ  petitioner  in

W.P.No.34198 of 2008 to voice his grievance along with other writ

petitioners which was virtually permitted by this Court earlier.  21. Reliance  was  placed  on  behalf  of  the  appellants  in  the

decision  reported  in  Ramesh  Chandra  Sankla  Vs.  Vikram

C.A. NO.3361 of 2015  with conntd. matters                              Page 22 of 52

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Cement & Ors.- 2008 14 SCC 58, paragraph 61 was relied upon

which reads as under:

“61. From the above case law, it is clear that

it  is  open  to  the  petitioner  to  withdraw  a

petition filed by him. Normally, a Court of Law

would  not  prevent  him  from  withdrawing  his

petition. But if  such withdrawal is without the

leave  of  the  Court,  it  would  mean  that  the

petitioner  is  not  interested  in  prosecuting  or

continuing the proceedings and he abandons his

claim.  In  such  cases,  obviously,  public

policy requires  that  he  should  not  start  fresh

round of litigation and the Court will not allow

him to  re-agitate  the  claim  which  he  himself

had given up earlier.”

22. Reliance was  placed  upon a  recent  decision  of  this  Court

reported in Pradeep Kumar Rai and others Vs. Dinesh Kumar

Pandey and others - (2015) 11 SCC 493, paragraph 17 was

relied upon to contend that the candidates having participated in

the process of interview and not challenged it till the results were

declared cannot be allowed to approbate and reprobate and on

that  principle,  the  challenge  was  rejected.   When  we  read

paragraph 17 we find that the appellants in that case participated

in the process of interview and challenged the results after a gap

of four months from the date of interview and the declaration of

results.  This Court therefore held that such an indifferent attitude

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displayed in making the challenge disentitle them to seek for any

relief.  The said case is not comparable at all to the case on hand,

where before the interview was conducted there was a challenge

and during the pendency of the said challenge, the interview was

held  and  ultimately  results  were  announced.   Thereafter,  the

challenge was made on very many substantial grounds such as

invalid members constituted the Commission, several  procedural

lapses in applying Regulation 6 of 1983 Regulations and serious

allegation  of  invalid  candidates  having  been  permitted  to

participate  in  the  interview  who  were  found  to  be  ultimately

selected  and  appointed  as  Principals.   Having  regard  to  such

extreme  serious  allegations  of  malpractice  in  the  matter  of

selection, there is no scope to apply the said decisions to the facts

of this case. 23. On behalf  of  the respondents reliance was placed upon a

decision of this Court reported in G.N.Nayak Vs. Goa University

and others - (2002) 2 SCC 712 on the question of estoppel.  In

an  identical  situation,  this  Court  held  that  when  the  cause  of

action  were  different,  the  withdrawal  of  earlier  writ  petition

without liberty to file a fresh application, will not have any impact

in making the challenge when the subsequent challenge was to

the selection ultimately held while the earlier challenge was on the

basis of an apprehended bias. We find the said line of reasoning

fully supported the case of the writ petitioners.  Even in the case

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Page 25

on hand, earlier when writ petitioners filed the writ petition, the

same was at a stage when the interview was about to be held. By

the time when the writ petition was pending, since the interview

was held and the results were ultimately published, the withdrawal

of the earlier  writ petition without liberty and a fresh challenge

made to the ultimate selection on various grounds cannot be held

to have disentitled the writ petitioners to raise the challenge. 24. It  was  contended  on  behalf  of  the  appellants  that  the

withdrawal of the earlier writ petition by one of the writ petitioners

would disentitle and estop the petitioners from making a challenge

to  the  selection  made  in  the  interview.   We have  extensively

discussed the said issue and have held how in the facts of this

case such an abstract proposition of law cannot be applied.  We

therefore  do  not  find  any  merit  in  the  said  submission  on  the

ground  of  principle  of  estoppel.  We  therefore  reject  the  said

submission outright. 25. The next  submission of  the  appellants  was  that  once the

High Court decided to apply the de facto doctrine, on finding that

the members of the Commission viz., the respondents 4 to 9 in

the  writ  petition  ceased  to  hold  office,  it  ought  not  to  have

interfered with the selection and in support of the said submission,

reliance  was  placed  upon  Gokaraju  Rangaraju  (supra).

Paragraph 4 of the said judgment is relevant where the principle

has been set out which reads as under: “4.  We  are  unable  to  agree  with  the

submissions  of  the  learned  counsel  for  the

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appellants.  The doctrine  is  now well  established that "the acts of the officers de facto performed by them within  the  scope  of  their  assumed  official authority,  in  the  interest  of  the  public or  third persons  and  not  for  their  own  benefit,  are generally as valid and binding, as if they were the acts  of  officers  de  jure"  (Pulin  Behari  v.  King Emperor). As one of us had occasion to point out earlier  "the  doctrine  is  founded on  good sense, sound policy and practical expedience. It is aimed at  the prevention of  public  and private mischief and the protection of public and private interest. It avoids endless confusion and needless chaos. An illegal appointment may be set aside and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. Hence the de facto doctrine" (vide Immedisetti Ramakrishnaiah Sons Vs. State of A.P.)”

26. It is no doubt well  settled that the acts of the officers de

facto  performed  by  them  within  the  scope  of  their  assumed

authority in the interest of the public or the third persons and not

for their own benefits are generally held valid and binding as if

they were the acts of the officers  de jure.  A reading of the said

paragraph does not give an omnibus authority even while applying

de facto doctrine to hold that every illegal acts or acts performed

which smacks of very many illegalities and incongruities should be

merely ignored and validated.  It has to be kept in mind that even

while applying the de facto doctrine whether such acts performed

were aimed at the prevention of public and private mischief and

for the protection of public and private interest.  The doctrine is

intended to prevent invalidation of Acts, such as appointments, on

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the  sole  ground  that  they  were  performed  without  de  jure

authority. Therefore, keeping the well  thought out principles set

down  in  the  said  judgment  in  mind  when  we  examine  the

approach of the Division Bench we find that the Division Bench

having  noted  that  the  respondents  4  to  9  in  the  writ  petition

ceased to hold office had to necessarily not deal with the challenge

made to their appointment for issuance of  quo warranto.  It also

rightly  applied  the  de  facto  doctrine  but  the  approach  of  the

Division Bench in stating that even while applying the  de facto

doctrine, the selection made required deeper scrutiny cannot be

held to be improper.  It must be stated that the allegations as

against the appointment of respondents 4 to 9 as members of the

Commission were not without any basis.  The Division Bench also

noted the fact that the details of respondents 4 to 9 disclosed that

except respondent No.9, the other respondents viz., 4 to 8 were

working as Readers in different post graduate and degree colleges

in the State of U.P. The scale of pay drawn by them was far less

than the scale of pay of Principal,  for which post, the selection

process was initiated. It was also noted that one of the members

viz., one Shri Ramveer Yadav was working as Reader in Narayan

College, Firozabad, was also an applicant for the post of Principal

pursuant to the Advertisement No.36 of 2003. The Division Bench

has also noted that all the above members came to be appointed

on the basis that they satisfied the qualification viz., “an eminent

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person  having  made  valuable  contribution  in  the  field  of

education”.  The Division Bench though did not want to proceed

with the writ of quo warranto yet found that when such challenge

is made with reference to the appointment of respondents 4 to 9

as members of the Commission, had substantial basis in making

the challenge.   Therefore,  though, it  had to apply the  de facto

doctrine, thought it fit to make a strict scrutiny of the entirety of

the selection procedure. 27. Reliance  was  then  placed  upon  decision  of  this  Court

reported in Madan Lal (supra).  Paragraph 10 was relied upon in

support of the submissions, wherein, this Court held that when the

interview committee consisted of a sitting High Court Judge, to

judge  the  relative  merits  of  the  candidates,  who  were  orally

interviewed,  based on the guidelines laid down by the relevant

rules governing such interviews, the assessment on merit as made

by such an expert Committee cannot be brought in challenge only

on the ground that the assessment was not proper or justified.

Even going by the said expressions used by this Court, the said

paragraph need not be elaborated further to compare the facts of

this case, where the Division Bench was not inclined to examine

the validity of the appointment of the Chairman and members of

the Commission who ceased to exist at the time when the writ

petitions were heard.  Therefore, the Division Bench rightly chose

to make a deeper scrutiny of the manner of selection made and

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found  very  many  illegalities  in  making  the  selection.   In  such

circumstances,  the ratio  laid  down in the said  judgment in  the

background of facts, i.e., the Committee was headed by a Sitting

High Court Judge, can have no application to the facts of this case. 28. We are  in  full  agreement  with  the  said  approach  of  the

Division Bench and, therefore, we hold that even while applying

the  de  facto doctrine,  the  Division  Bench  was  well  justified  in

proceeding to examine the correctness of the selection made by

making  a  deeper  scrutiny  and,  therefore,  we  are  not  able  to

appreciate the said submission that once  de facto doctrine was

applied  the  selection  should  have  been  upheld.   The  said

submission also stands rejected. 29. When we come to the third submission, the contention of

the appellants was that while making the process of screening, as

stipulated  under  Regulation  6(1)  of  the  1983  Regulations,  the

Commission duly followed the required norms depending upon the

selection it wanted to make for the number of existing vacancies

and the anticipated vacancies by taking appropriate decisions as

between 06.11.2006 and 22.05.2008 when the Commission fixed

the norms while permitting all  the candidates to be interviewed

and by making appropriate changes in the cut-off index to enable

all the candidates to participate in the interview.  The challenge to

such a course adopted by the Commission was on the ground that

the last of the advertisement was in Advertisement No.39 issued

in February, 2005 and the corrigendum issued on 23.02.2006, the

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last day for submission of the application was 03.04.2006.  It was

therefore contended that the Rules as existed on the last date of

the  submission of  the  application have to  be followed and any

change of the recruitment process or rules of recruitment after the

cut-off  date was not permissible.   Any change in the screening

process  or  guidelines  without  any  valid  reason  can  always  be

interfered with on being substantiated.  With that basic principle in

mind when we consider the submission, we find that the Division

Bench was able to note that the details of the candidates for the

post of Principal in Post graduate colleges were called in excess of

the ratio of 1:8 as provided in Regulation 6(1) which resulted in

allowing 18 candidates in the female category and 95 candidates

in the male category to participate in the interview. It also noted

that  such  permission  granted  by  the  Commission  ultimately

resulted in around 15 candidates who were otherwise not entitled

to participate in the interview, participated and got selected.    30. In  this  context  when  we  refer  to  Regulation  6(1),  the

substantive part  of  the said regulation viz., 6(1) empowers the

Commission to  scrutinise the applications and call  for  interview

such  number  of  candidates,  as  it  may  consider  proper.   The

proviso, however, empowers the Commission to limit the number

of candidates to be called for the interview if there were excess

number  of  applications  or  for  any  other  reasons.   For  the

expression “for any other reasons” must always be appropriately

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substantiated,  if  on  that  ground  the  limiting  of  the  number  of

candidates was resorted to by the Commission.  Under proviso (ii)

in  the  case  of  the  Principal,  it  is  specifically  stipulated  that

preliminary screening on the basis of academic record, teaching

and administrative experience to be carried out and that as far as

possible,  the ratio  between  3 to  8  times the vacancies  can be

determined  by  the  Commission,  which  it  finds  appropriate.  A

reading of the Regulation 6(1) on the whole thus shows that the

Commission has been invested with substantive power to call for

interview such number of candidates as it may consider proper.

Therefore, it cannot be held that it should always restrict it to the

minimum 3 to  8  times  the vacancies,  as  the  Commission  may

consider proper.   31. In the case on hand,  initially, the Commission decided to

limit  the  number  of  candidates  by  fixing  the  norms.   The

Commission  by  fixing  the  cut-off  mark  as  34.9  for  female

candidates  35.1  for  male  candidates  proceeded  to  process  the

applications.   But  it  came to  light  that  subsequently  the  index

norms  were  altered  and  ultimately  it  decided  to  call  all  the

candidates.  Such  decisions  were  taken  on  06.11.2006,

10.04.2008,  13.04.2008  and  22.05.2008.   When  we  take  into

account  the  above  facts,  we  find  that  while  initially  the

Commission decided to limit  the number of  candidate by fixing

index norms for female and male candidates, and proceeded to

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hold  the  interview,  based  on  such  norms,  the  question  for

consideration is whether the Commission could have resorted to

variation  of  such  index  norms  and  ultimately  allow  all  the

candidates  to participate in the selection.  Such variation in the

norms  was  resorted  to  by  the  Commission  and  the  ultimate

selection came to be made and it was alleged that such variation

was  adopted  by the  Commission  with  a  view to  favour  certain

candidates  who  otherwise  did  not  come  within  the  zone  of

consideration for participation in the interview.  Such an allegation

is definitely a very serious allegation and therefore it cannot be

held  that  such  allegations  are  to  be  simply  brushed  aside  by

accepting the stand of the Commission that ultimately the ratio

was far below 1:8 or within the said range.  We are concerned

with the decision of the Commission which it  took at the initial

stages  before  the  commencement  of  the  interview,  though not

before  the  last  date  of  submission  of  the  application  viz.,

03.04.2006.   Though  the  Commission  has  been  invested  with

ample powers under Regulation 6, in the matter of calling of the

candidates  for  interview  and  also  limit  such  calling  of  the

candidates,  the  Commission  is  expected  to  display  its  honest

approach in its dealings.  The Commission cannot follow certain

practices, which gives scope for serious criticisms especially where

it relates to the matter of selection for very responsible post of

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Principal  to  various  aided  and  affiliated  colleges  of  the  State

University.  32. It will also be worthwhile to make a reference to a recent

decision of this Court reported in  Salil Sabhlok (supra).  This

Court  while  considering  the  competence  and  validity  of

appointment of a Chairpersons of the Public Service Commission

of the State of Punjab made a reference to two earlier decisions of

this Court viz.,  Ashok Kumar Yadav (supra)  and  In R/o Dr.

Ram  Ashray  Yadav,  Chairman,  Bihar  Public  Service

Commission - (2000) 4 SCC 309 respectively.  The extracted part

of  the  above  two  referred  to  decisions  can  be  usefully  quoted

which are as under:

“94.  In  Ashok  Kumar  Yadav  v.  State  of Haryana, (1985) 4 SCC 417 this Court looked at the appointment of the Chairperson and members of  the  Public  Service  Commission  from  two different  perspectives:  firstly,  from  the perspective  of  the  requirement  to  have  able administrators in the country and secondly from the  perspective  of  the  requirement  of  the institution  as  such.  In  regard  to  the  first requirement, it was said:

“It  is  absolutely essential  that the best and finest talent should be drawn in the administration  and  administrative services must be composed of men who are honest, upright and independent and who  are  not  swayed  by  the  political winds  blowing  in  the  country.  The selection  of  candidates  for  the administrative  services  must  therefore be  made  strictly  on  merits,  keeping  in view various factors which go to make up a  strong,  efficient  and  people  oriented

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administrator. This can be achieved only if  the  Chairman  and  members  of  the Public  Service  Commission  are  eminent men possessing a high degree of calibre, competence  and  integrity,  who  would inspire  confidence  in  the  public  mind about the objectivity and impartiality of the selections to be made by them.”  

In regard to the second requirement, it was said:

“We  would  therefore  like  to  strongly impress upon every State Government to take care to see that its  Public  Service Commission  is  manned  by  competent, honest  and  independent  persons  of outstanding  ability  and  high  reputation who  command  the  confidence  of  the people  and  who  would  not  allow themselves  to  be  deflected  by  any extraneous  considerations  from discharging  their  duty  of  making selections strictly on merit.”

***

42. In R/O Dr. Ram Ashray Yadav, Chairman, Bihar Public Service Commission (supra), Dr. A.S. Anand,  C.J.  speaking  for  a  three  Judge  Bench, cautioned:

“The credibility of the institution of a Public Service Commission is founded upon the faith of the common man in its  proper  functioning.  The  faith would  be  eroded  and  confidence destroyed  if  it  appears  that  the Chairman  or  the  members  of  the Commission act subjectively and not objectively  or  that  their  actions  are suspect.  Society  expects  honesty, integrity  and  complete  objectivity from the Chairman and members of the  Commission.  The  Commission must act fairly, without any pressure or  influence  from  any  quarter, unbiased  and  impartially,  so  that society  does  not  lose  confidence  in the  Commission.  The  high constitutional  trustees,  like  the

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Chairman and members of the Public Service  Commission  must  forever remain  vigilant  and  conscious  of these necessary adjuncts.”

33. After  noting  the  above  statement  of  law  and  oft  quoted

principles in para 99 it has been held as under:

“99. While it is difficult to summarize the indicators laid down by this Court, it is possible  to  say  that  the  two  most important requirements are that personally the  Chairperson  of  the  Public  Service Commission  should  be  beyond  reproach and his or her appointment should inspire confidence  among  the  people  in  the institution.  The  first  ‘quality’  can  be ascertained  through  a  meaningful deliberative  process,  while  the  second ‘quality’ can be determined by taking into account  the  constitutional,  functional  and institutional requirements necessary for the appointment.”

34. We are referring to the above passages reported in the said

decisions only to highlight as to how the Division Bench in the

impugned  judgment  was  justified  in  having  frowned  upon  the

nature of appointments of the members and the Chairman of the

Commission at whose instance the selection came to be made and

though  the  Division  Bench  could  not  consider  the  writ  of  quo

warranto filed  against  those  members  who  were  arrayed  as

respondents  4  to  9  in  the  writ  petitions  as  they  ceased  to  be

members by that time when the writ petitions were taken up for

hearing and when it  applied the de facto doctrine,  the Division

Bench was obliged to make a deeper scrutiny of the whole issue

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for reaching its own conclusions.  We find full justification in the

said  approach  made  by  the  Division  Bench  in  the  impugned

judgment. 35. Therefore, when the Division Bench was able to note serious

allegations as against the respondents 4 to 9 who were inducted

as  members  of  the  Commission  and  whose  qualification  to  be

appointed as members was seriously put to challenge and further

in the course of making the selection, it was pointed out that the

Commission  did  not  adopt  a  definite  course  in  making  the

selection, instead, it varied its norms on different dates, certainly,

the conclusion of the Division Bench in having frowned upon such

approach made by the Commission cannot be found fault with. 36. On behalf of the appellants, reliance was placed upon the

Four  Judges  Bench  decision  of  this  Court  reported  in  Ashok

Kumar  Yadav  (supra).   Specific  reliance  was  placed  upon

paragraph  No.21  of  the  said  judgment  wherein,  this  Court

considered the arguments made against  a selection,  which was

upheld by a Division Bench of the High Court.  The submission was

on  the  ground  that  as  many  as  1300  and  more  candidates

representing  more  than  20  times  the  number  of  available

vacancies were called for interview.  So far as the said contention

was concerned, this Court held that even if more than the required

number of candidates were called, that by itself will not vitiate the

selection, in as much as something more than merely calling and

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unduly  large  number  of  candidates  for  interview  in  order  to

invalidate the interview and selections made.   37. So far  as  the  said  principle  is  concerned,  in  the  case on

hand,  it  is  not  merely  a  violation  of  the  proportion  of  the

candidates called for the interview vis-à-vis the number of posts,

which were to be filed up.  The Division Bench has noted, which

we have also seen, where we have found that the Commission

even while  exercising its  power  under  Regulation  6(1)  was not

consistent in the matter of calling the candidates for the interview.

For  very  valid  reasons,  stated  by the  Division  Bench,  we have

found  that  for  reasons  best  known to  it,  the  Commission  was

varying the cut-off index and in that process it came to light that

ineligible candidates numbering more than 100 were allowed to

participate and amongst  whom 15 got  selected for  the  post  of

Principal.   That  apart,  the  Division Bench has  also  pointed  out

various  other  discrepancies  in  the  selection  to  show  that

everything  was wrong in the selection made especially  when it

declined to examine the plea of  quo warranto on the ground by

applying the de facto doctrine.  Therefore the said decision does

not anyway apply to the facts of this case. 38. We are, therefore, of the view that the Division Bench was

well  justified  in  holding  that  the  changing  of  the  norms  while

applying  Regulation  6(1)  for  the  initial  screening  thrown

considerable doubt about the genuineness in the selection process

adopted  by  the  Commission.   In  the  said  circumstance  the

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conclusion of the Division Bench that when greater faith and trust

was  invested  with  the  Commission  and  when  the  Commission

breached  its  own  criteria  and  thereby  acted  contrary  to  the

standards laid by it, which resulted in an arbitrary selection made

by it has to be held as well justified.  We are, therefore, not able

to appreciate the submission of the learned senior counsel for the

appellants and the same is also rejected.   39. The next submission of the learned senior counsel was that

the  selection  made  by  the  Commission  is  in  accordance  with

Regulation 6, that there were guidelines both for initial screening

as well as for evaluating the merits at the time of interview.  In

support of the said submission both on behalf of the Commission

as well as the appellants it was pointed out that the guideline as

required  under  Regulation  6(2)  was  formulated  as  early  as  on

06.10.1983 and that based on the said guideline,  the selection

process was made.  The said guideline was in fact placed before

the  Division  Bench  and  the  Division  Bench  has  extracted  the

guidelines dated 06.10.1983 which is to the following effect:    “Each of the Members of an Interview Board

irrespective  of  whether  he  is  a  Member  of  the commission  of  an  Expert  shall  award  marks  in writing to each candidate out of a maximum of 50 marks and as per the following scheme of grading and evaluation:-  

Grade Numerical range of grader   Percent of marks Maks cut of 50  

1. Outstanding 85% and above 43 and above   2. Excellent 75%-85% 38-42 3. Very Good 65%-75% 33-37 4. Good 55%-65% 28-32

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5. Fair 45%-55% 23-27 6. Poor  Below 45% 22 or less  

The award of 22 marks of less to candidate by an Expert shall imply that the said Expert does not consider the candidate settled for appointment. In order for a candidate to be considered any further for merit  ranking, it  would be necessary that at least one of the participating Experts should have awarded 23 marks or more to the candidate.  

The  awards  given  by  the  Members  of  the Interview Board shall then be pooled together to determine the overall  merit  individual evaluation salary  of  the  …..........will  be  done  as  per  the following table, so as to ensure parity between the block of Members of the Interview Board who are also Members of the Commission on the one hand and the block of Experts on the other.  

Table: Scaling Factor

Composition  of the  Interview Board  Member of  the Commission; Expert

Scaling factor for The  marks awarded  by  the block  consisting of  Members  of the Commission

Total  of  the mau. The  marks awarded  by the  block Experts

Marks

1. 3M+3E 1 1 300 2. 3M+2E 1 1.5 300 3. 2M+3E 1.5 1 300 4. 2M+2E 1.5 1.5 300

40. After referring to the said guideline, the Division Bench has

examined whether the guidelines did satisfy the requirement as

stipulated in Regulation 6(2).  Regulation 6(2) mentions that the

Commission should interview the candidates in accordance with

the criteria, minimum standards and the guidelines set out by it

and if it consider necessary can hold practical test also as part of

interview.  We are not concerned with the practical test part of the

Regulation 6(2).  We are only concerned with the requirement of

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prescription of criteria, minimum standards and guidelines. After

referring to the guidelines dated 06.10.1983, the Division Bench

has found that, the said guidelines merely provided for grading of

the candidates as Outstanding, Excellent, Very Good, Good, Fair

and Poor and therefore found that what was the criteria that is to

be applied, the minimum standard to be prescribed have not been

spelt out in the guidelines dated 06.10.1983.   41. In  this  context,  the  Division  Bench  has  referred  to  the

decision of this Court in  Kiran Gupta and others Vs. State of

U.P. and others - (2000) 7 SCC 719,  wherein, the selection

made to the post of Principal of Secondary Schools in the State of

U.P. were under challenge, and one of the grounds of challenge

was about the laying down of the guidelines of the Commission on

which ground the selection was sought to be invalidated.   This

Court,  while  dealing  with  the  said  challenge,  has  noted  the

following features in paragraph 29.  Paragraph 29 as extracted by

the Division Bench can be noted again, which reads as under:  “29. In the guidelines framed by the Commission the following  aspects  are  to  be  kept  in  mind  while evaluating a candidate :

"Madhyamik  Shiksha  Ayog-  The  candidates called  for  interview  have  to  be  adjudged  by members  of  the  Board  for  75  Marks,  keeping  in view the following factors:

1. Personality. 2. Knowledge of the subject. 3. Knowledge of current ideas and problems of

the  educational  work  diagnostic  attitude  towards them.

4. General Knowledge. 5.  Administrative  ability  regarding  school

management.

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6. Self expressive and impressive views. 7.  Achievement in curricular  activities  of  the

regional and State levels.”

42. After having prescribed such various factors with reference

to  which  the  merits  of  a  candidate  was  to  be  tested  in  the

interview, this Court found that though maximum marks for each

of the item were not allocated, it held that the members of the

Commission  who  interviewed  the  candidates  awarded  marks  in

lump individually after evaluating the candidates on the basis of

the  afore  mentioned  factors.   It  was  based  on  the  said

consideration, the Court ultimately held that there was no illegality

in  the  procedure  of  overall  evaluating  of  the  candidates  fixing

marks for each of the items noted above.  The said case is of no

comparison  to  the  case  on  hand.   In  the  case  on  hand,  the

contention  was  that  even though under  Regulation  6(2)  it  was

specifically  stipulated  that  interview  will  be  held  based  on  the

guidelines which should specifically state as to how consideration

should be made while holding the interview, no guidelines were

formulated and thereby leaving it open for the members of the

Commission to arbitrarily award marks while making the selection

and thereby provided scope for arbitrariness.  43. This Court after noting the specific criteria prescribed in the

guidelines for evaluating the merits of a candidate held that since

the guidelines provided for sufficient criteria to assess the merit of

a candidate the selection made based on such guidelines cannot

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be interfered  with.  The Division Bench having  noted the above

ruling of this Court, therefore, held that what is prescribed in the

guideline  dated  06.10.1983,  would  at  best  only  enable  the

Interviewing Committee to grade the candidates based on their

performance in the interview and that it did not provide sufficient

guidelines as was required to be provided for under Regulation

6(2). As far as the guideline dated 06.10.1983 was concerned, as

was  noted  by  the  Division  Bench  as  well  as  by  us,  it  merely

showed as to what will be the effect of the percentage of marks

that were to be allotted to each individual candidates. Unlike the

decision referred to above where each of several factors such as

personality, aptitude etc., have been specifically prescribed in the

guideline, there was no such specific factors determined by way of

guideline as was required to be done by the Commission under

Regulation 6(2).  In such circumstances, the said decision is of no

assistance to the appellants but on the contrary it is in favour of

the  respondents.  We are  therefore  in  full  agreement  with  the

above  said  conclusion  of  the  Division  Bench  and  the  said

submission of the learned senior counsel for the appellants as well

as that of the Commission stands rejected.   44. The next submission of the appellants was that the Division

Bench  committed  a  serious  factual  error  in  respect  of  certain

candidates  with  reference  to  whom it  gave a  finding that  they

were permitted to participate in the interview even though they

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did not fulfill the minimum qualification and on that ground, held

that their selection was unjustified.  Such cases were related to Dr.

Ramesh Chand Pathak, Dr. Shashi Misra, Dr. Ram Avtar Singh, Dr.

Ikbal Habib, Dr. Udyan Misra and Dr. Suresh Jain.   45. Mr. Amarendra Saran learned senior counsel appearing for

those  appellants  took  pains  to  draw  our  attention  to  various

documents to show that the finding of fact reached by the Division

Bench was wrong and that going by the details furnished by the

respective candidates, they did fulfill the minimum qualification as

well  as  experience  and  therefore  the  finding  to  the  contrary

reached  by  the  Division  Bench  should  be  set  aside.   However

forceful  the  contention  may be,  when  we refer  to  the  Division

Bench  judgment  on  issue  No.7  which  pertains  to  the  above

submissions,  we  find  that  the  Division  Bench  after  noting  the

qualification  and  experience  prescribed  in  the  advertisement

examined the case of each of the above referred to candidates and

has rendered a factual finding to the effect that they did not fulfill

the minimum qualification nor the experience.  In as much as such

a factual finding has been rendered by the Division Bench after

detailed reference to the facts placed before it, we are not inclined

to look into any of the documents which were placed before us at

the  instance of  those appellants  in  order  to  do the  very  same

exercise  as  regards  the  facts  relating  to  those  candidates  for

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reaching a different conclusion.  Therefore, the said submission is

also rejected.    46. In fact,  while examining the said issue No.7, the Division

Bench has also referred to the case of one Phool Chand Singh with

reference to whom, it has found that he was involved in a serious

criminal  case  in  case  No.217/1989,  wherein,  charges  under

Sections 147, 148, 149 and 302 I.P.C. have been framed and that

even  the  said  person  was  selected.   It  has  made  a  detailed

reference to the criminal case filed against the said Phool Chand

Singh to state that the Commission failed to act appropriately in

holding  the  selection  and  thereby  gave  scope  for  reaching  the

conclusion  that  the  whole  selection  was  seriously  infected  and

consequently, the whole selection was liable to be set aside.   47. It  was  then  contended  that  even  if  the  individual  cases

where the Division Bench held that they were not qualified, yet

allowed to participate and got selected, based on such conclusion,

the entire selection should not have been interfered with.  In so

far as the said submission is concerned, in the first instance, it

must be noted that after finding the serious flaw in the matter of

selection  made  by  the  Commission,  where  the  Division  Bench

noted serious allegations as against those who were inducted as

members of the Commission who ceased to hold office by the time

the writ petitions came to be heard and thereby the Division Bench

was obliged to apply the de facto doctrine and consider the whole

selection with little more care and caution, in which process, the

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Division Bench was able to find out that the relevant regulation

viz., regulation 6 was seriously breached, in as much, as there

were  serious  flaws  in  the  preliminary  screening  as  well  as  in

permitting ineligible candidates to participate apart from lack of

necessary guidelines as prescribed under the Regulation 6(2) for

holding  the  interview  in  order  to  assess  the  merits  of  the

candidates and therefore as a step further, the Division Bench took

note of  certain  instances where  it  pointed out how the various

factors  noted  by  it  did  show the  serious  lacuna  in  the  overall

selection made by the Commission. Therefore, the individual cases

cannot  be  isolated  to  state  that  setting  aside  of  the  selection

should be restricted to only those individual cases and the entirety

of  the  selection  cannot  be  affected.  We  are  not  able  to

countenance  such  a  submission  put  forth  on  behalf  of  the

appellants and the same stands rejected.   48. On behalf of the contesting respondents, reliance was placed

upon the decision of this Court reported in Satpal and others Vs.

State  of  Haryana  and  others-  (1995)  Supp  1  SCC  206,

paragraph 9 is relevant for our purpose, the relevant part of it

reads as under: “9. We would like to make it clear that we

have limited our consideration to the procedure adopted at the pre-selection stage and have not thought it necessary to examine the procedure at the post-selection stage, once we hold that the entire selection process was tainted, we are not able to uphold the submission of the learned counsel  for  the  appellants  that  since  the appellants had received training and had passed

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the examination, they should be protected.……… We think that once the process of selection is found  to  be  tainted,  whatever  had  flowed consequent thereto must also fall along with the process  of  selection.   We,  therefore,  see  no merit in this plea.”

The  above  referred  to  principle  laid  down  by  this  Court  fully

supports the stand of the respondents and also in tune with what

we have held in this judgment. 49. In this context, it will be worthwhile to refer to the decisions

relied upon by Mr. Jitendra Mohan Sharma, learned senior counsel

who appeared for the intervenors viz., the decisions reported in O.

Chakradhar (supra) and  Krishan Yadav (supra).  The above

decisions fully support the stand of the private respondents that

when the whole process of selection is challenged, individual cases

are of no consequence.   50. We also find full support to our conclusions when we deal

with  the  submission  of  Mr.  Saran  and  Mr.  Krishnakumar  in

contending that merely because selection relating to some of the

candidates were tainted the whole of the selection should not be

upset.   In  this  context,  the  reliance  placed  upon  the  decision

reported  in  O.  Chakradhar  (supra) by  Mr.  Jitender  Mohan

Sharma, learned senior counsel for the intervenor is well founded.

Paragraph 12 of the said decision can be usefully referred to which

reads as under: “12.  As  per  the  report  of  the  CBI  whole

selection smacks of mala fide and arbitrariness. All  norms are  said  to  have been  violated  with impunity at each stage viz. right from the stage of entertaining applications, with answer-sheets

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while  in  the  custody  of  Chairman,  in  holding typing  test,  in  interview  and  in  the  end  while preparing final  result.  In  such circumstances  it may not be possible to pick out or choose any few  persons  in  respect  of  whom  alone  the selection could be cancelled and their services in pursuance  thereof  could  be  terminated.  The illegality and irregularity are so inter-mixed with the  whole  process  of  the  selection  that  it becomes impossible to sort out the right from the wrong  or  vice  versa.  The  result  of  such  a selection cannot be relied or acted upon. It is not a case where a question of misconduct on the part of a candidate is to be gone into but a case where those who conducted the selection have rendered  it  wholly  unacceptable.  Guilt  of  those who  have  been  selected  is  not  the  question under  consideration  but  the  question  is  could such selection  be acted  upon in  the  matter  of public employment? We are therefore of the view that it  is  not one of those cases where it  may have been possible to issue any individual notice of  misconduct  to  each  selectee  and  seek  his explanation  in  regard  to  the  large  scale widespread  and  all  pervasive  illegalities  and irregularities committed by those who conducted the selection which may of course possibly be for the benefit of those who have been selected but there  may  be  a  few  who  may  have  deserved selection otherwise but it is difficult to separate the cases of some of the candidates from the rest even if there may be some. The decision in the case of Krishna Yadav (supra) applies to the facts of the present case. The Railway Board's decision to  cancel  the selection cannot  be faulted with. The appeal therefore deserve to be allowed.”

51. A reference to the said paragraph amply demonstrate in a

case of  this  nature,  it  will  be difficult  to identify  such of  those

candidates whose selection can be upheld and deal with the rest

differently.  52. To the very same effect  is the decision reported  Krishan

Yadav (supra), paragraph 20 is relevant, which reads as under :

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“20. In the above circumstances, what are we to do? The only proper course open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument.  When  the  entire  selection  is  stinking, conceived  in  fraud  and  delivered  in  deceit, individual  innocence  has  no  place  as  "fraud unravels everything". To put it in other words, the entire  selection  is  arbitrary.  It  is  that  which  is faulted  and  not  the  individual  candidates. Accordingly  we  hereby  set  aside  the  selection  of Taxation Inspectors.”

53. Therefore, by applying the said principle, we do not find any

scope for interfering with the decision of the Division Bench. 54. One  other  submission  made  was  that  on  the  issue  of

reservation.  In spite of a ruling of this Court in Bharat Singh’s

case reported in  Bharat Singh (supra) some candidates were

selected based on reservation and in that respect only four such

candidates came to be selected and even in respect of the said

four candidates, one did not join, one joined and left, one resigned

and another person is going to retire soon and consequently on

that ground the selection need not be interfered with.  As was

noted by us, in the earlier paragraph it is not that single instance

which  weighed  with  the  Division  Bench  to  interfere  with  the

selection.   The Division  Bench after  finding  serious  flaw in  the

whole of the selection process found that there was serious breach

of  the  regulations  governing  the  selection  process  and

consequently set aside the whole selection. In that process, the

Division Bench also found that in spite of clear dictum of this Court

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in  Bharat  Singh’s  case,  the  Commission  applied  the  rule  of

reservation  and  quoted  those  instances  while  setting  aside  the

selection.  Therefore, the non-joining or resignation of some of the

candidates  or  the  likelihood  of  the  retirement  of  one  other

candidate will be of no consequence when the whole process of

selection was affected by serious illegalities. Therefore, the said

submission  also  does  not  merit  any  consideration  and  stands

rejected. 55. Reliance  was  placed  upon  the  decision  reported  in  N.T.

Devin Katti (supra) in particular paragraph 15, where this Court

even  after  finding  that  the  selection  made  for  the  post  of

Tahsildars was liable to be set aside, ultimately was not inclined to

terminate the services instead allowed the appointees to continue

in  service  and  also  directed  the  State  Government  to  create

supernumerary post of Tahsildars for appointing the appellants in

that case.  In that case also by way of an interim order, during the

pendency  of  the  appeal,  the  appointment  orders  containing

specific term that the appointment should be subject to the result

of the writ petition, filed by the appellants therein.  We must state

that  the said case is  not comparable to the facts  of  this  case,

wherein,  the number of appointments are more apart  from the

fact that the appointments were allowed to be made by specific

order dated 20.04.2008 by which, it was directed that the selected

candidates  should  execute  an  undertaking  that  in  the  event  of

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they loosing the battle,  they will  stand reverted to the post of

Readers and that they also undertook to pay back the difference in

salary. 56. Before concluding, it is necessary to note that when in the

earlier round of litigation, dealt with by this Court in C.A.2351 of

2011, initially an interim order came to be passed on 20.11.2008,

by which, the selected candidates were directed to be appointed,

subject to filing of an undertaking into this Court within one month

from that date and the undertaking was to the effect that in the

event if they lose the battle, they will be automatically reverted as

Readers  and the difference of  salary that would be taken as a

Principal should be recovered and paid back to the petitioners viz.,

the State Government.  In the final order passed by this Court on

08.03.2011, this Court has noted in paragraph 11 that the said

interim order was complied with and based on the undertaking, all

the  selected  candidates  were  duly  appointed  subject  to  the

outcome  of  the  said  appeal.   Finally,  on  08.03.2011,  while

disposing of the said appeal, the said interim order was allowed to

be continued till  the writ  petitions are disposed of by the High

Court.  When these appeals were moved at the S.L.P. stage, while

issuing notice by order 10.05.2012, pending further orders of this

Court,  the operation of  the  impugned judgment and order  was

directed  to  be  stayed.  The  interim  order  was  subsequently

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continued  by  order  dated  31.03.2015.  The  last  para  of  the

judgment of the Division Bench is as follows: “In result, all the writ petitions are decided in

following manner:-  

(i)  Writ  Petition  Nos.70062  of  2006  and

29524 of 2007 are dismissed.  

(ii) Writ Petition Nos.34198 of 2008 and other

writ petitions of group-1 are allowed. The select

lists  dated  30.6.2008  and  2.7.2008  are  set

aside. The selected candidates shall take steps

in compliance of their undertaking given before

the apex Court in Civil Appeal No. 2351 of 2011

and other connected appeals in accordance with

law.  

(iii)  Writ  petition  No.  44358  of  2007  is

allowed. The select list dated 15.5.2007 is set

aside. The selected candidates shall take steps

in compliance of their undertaking given before

the apex Court in respective Civil Appeals.  

(iv)  Writ  petition  No.  38714  of  2003  and

other  writ  petitions  of  group-3 are  allowed in

view of the judgment of the apex Court in Civil

appeal No. 2352 of 2011 and other connected

appeals  dated  8.3.2011  in  State  of  U.P.  Vs.

Bharat Singh and others.  

(v)  The  U.P.  Higher  Education  Service

Commission  shall  consider  and  frame

appropriate guidelines for conduct of interview

for  selection  on  the  post  of  Principal  of

Postgraduate/Degree  Colleges  in  accordance

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with law as mandated by Regulation 6(2) of the

1983 Regulations and further take early steps

for  filling  the  vacant  posts  of  Principal  of

Postgraduate/Degree  Colleges  in  accordance

with law.  Parties shall bear their own costs.”    

57. We fully affirm the above directions of the Division Bench

and the appeals stand dismissed.

….………………………………………...J. [Fakkir Mohamed Ibrahim Kalifulla]

….………………………………………...J. [S.A. Bobde]

New Delhi; July 15, 2016

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